{"id":4050,"date":"1975-01-22T00:00:00","date_gmt":"1975-01-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sadhu-roy-vs-the-state-of-west-bengal-on-22-january-1975"},"modified":"2019-04-05T22:24:02","modified_gmt":"2019-04-05T16:54:02","slug":"sadhu-roy-vs-the-state-of-west-bengal-on-22-january-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sadhu-roy-vs-the-state-of-west-bengal-on-22-january-1975","title":{"rendered":"Sadhu Roy vs The State Of West Bengal on 22 January, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sadhu Roy vs The State Of West Bengal on 22 January, 1975<\/div>\n
Equivalent citations: 1975 AIR 919, \t\t 1975 SCR (3) 291<\/div>\n
Author: V Krishnaiyer<\/div>\n
Bench: Krishnaiyer, V.R.<\/div>\n
           PETITIONER:\nSADHU ROY\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF WEST BENGAL\n\nDATE OF JUDGMENT22\/01\/1975\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nSARKARIA, RANJIT SINGH\n\nCITATION:\n 1975 AIR  919\t\t  1975 SCR  (3) 291\n 1975 SCC  (1) 660\n CITATOR INFO :\n RF\t    1975 SC1165\t (5)\n\n\nACT:\nMaintenance  of\t Internal  Security  Act  (26  of  1971)  S.\n3.--Preventive\tdetention after discharge by Criminal  Court\nfor offences which are grounds of detention--When valid.\n\n\n\nHEADNOTE:\nThe petitioner was detained under s. 3 of the Maintenance of\nInternal Security Act, 1971.  The grounds of detention\twere\nthat twice on the same day he and his associates, armed with\ndangerous weapons, committed thefts of overhead copper wire,\nthe  first  time in broad day light and then  at  about\t mid\nnight.\t On  both occasions they were challenged  by  public\nservants, members of the para police force, attached to\t the\nrailway administration but the petitioner and his associates\nescaped\t after attacking the members of the  Railway  Police\nForce.\t The petitioner was arrested in connection with\t the\ntwo  incidents.\t  His  name was not in the  F.I.R.  but\t was\ngathered  in the course of investigation.  The police,\thow-\never reported that the petitioner being a dangerous  person,\nwitnesses  were afraid to depose against him in\t open  court\nand  so\t he  was discharged.  He was,  however,\t taken\tinto\ncustody the same day of discharge pursuant to the  detention\norder.\nAllowing the petition challenging the detention.\nHELD  : 1(a) The discharge or acquittal by a criminal  court\nis not necessarily a bar to preventive detention on the same\nfacts  for  'security' purposes.  But if such  discharge  or\nacquittal  proceeds  on\t the  footing  that  the  charge  is\nbaseless   or  false,  preventive  detention  on  the\tsame\ncondemned  facts  may be vulnerable on the ground  that\t the\npower  of  detention has been exercised in a  mala  fide  or\ncolorable manner.\n(b)  The   executive   authority  may  act   on\t  subjective\nsatisfaction and is immunised from  judicial  dissection  of\nthe   sufficiency  of  the  material.\tBut  the   executive\nconclusion  regarding futuristic prejudicial  activities  of\nthe  detenu  and  its nexus with  his  past  conduct  though\nacceptable is not invulnerable.\n(c)  The  satisfaction though attenuated  by  'subjectivity'\nmust  be real and rational, must flow from an advertence  to\nrelevant  factors, and not be a mockery or mechanical  chant\nof   statutorily   sanctified\tphrases.    The\t  subjective\nsatisfaction must be actual satisfaction.\n (d) One test to check upon the colorable nature or mindless\nmood of the alleged satisfaction of the authority,is to\t see\nif  the articulated 'grounds' are too groundless  to  induce\ncredence  in  any  reasonable man or  too  frivolous  to  be\nbrushed\t   aside    as\t fictitious   by    a\t responsible\ninstrumentality.\n(e)  If\t  witnesses  are  frightened  off  by  a   desperate\ncriminal, the court may discharge for deficient evidence but\non  being  convinced (on police or  other  materials  coming\nwithin\t his  ken)  that  witnesses  had  been\t scared\t  of\ntestifying,  the  District Magistrate may still\t invoke\t his\npreventive power to protect society.\n(f)  But  if  on  a rational or fair  consideration  of\t the\npolice\tversion\t or probative circumstances he\tshould\thave\nrejected  it the routinisation of the satisfaction,  couched\nin  correct  diction.  cannot  carry  conviction  about\t its\nreality\t and  on a charge of mala fides or misuse  of  power\nbeing made, the court can examine the circumstances. [297 D-\n298 C]\n(2)  Merely to allege that witnesses were panicked away from\ntestifying  to truth cannot be swallowed gullibly  when\t the\nwitnesses  are members of the Railway Protection  Force\t and\nthe offenses against public property were of grave\ncharacter. [299 B-C]\n292\n(3)In  a case like the present, where the  circumstances  Of\nthe non-prosecution strongly militate against the reality of\nthe   petitioner's  involvement\t in  the   occurrence,\t the\nsubjective  satisfaction of the District Magistrate must  be\nspoken\tto  by\thim.  While the detainer's on  oath  is\t not\nalways\tinsisted on as the price for sustaining\t the  order,\nsubjective  satisfaction,  being a mental fact or  state  is\nbest established by the author's affidavit and not that of a\nstranger  in the secretariat familiar with the papers.\t But\nin the present case, the District Magistrate's affidavit  is\nnot  available and the reason given for his not\t filing\t his\naffidavit is not convincing.  If the District Magistrate had\nsworn  an affidavit that the identity of the  petitioner  as\nparticipant  in\t the  two incidents was\t not  known  to\t the\nRailway Protection Force and that other villagers made\tthem\nout as the gang was decamping with the booty, the  detention\nmight  have been upheld.  But there is no such averment\t and\nthe  bare  ipse dixit of the Deputy Secretary  in  the\tHome\nDepartment  that  witnesses  were afraid to  depose  is\t too\nimplausible and tenuous to be acceptable even for subjective\nsatisfaction. [298 E-F; 299 A-B, C-E]\n[Were  a  grievous  crime against  the\tcommunity  has\tbeen\ncommitted   the\t culprit  must\tbe  subjected\tto   condign\npunishment  so\tthat the penal law may strike a\t stern\tblow\nwhere it should.  Detention is a softer treatment.  Further,\nif the is innocent  the process of the law should give him a\nfair   chance\tand   that  should  not\t  be   scuttled\t  by\nindiscriminate\tto easy but unreal orders of  detention\t un-\nbound by precise time.]. [300 C-E]\nSrilal\tShaw v. The State of West Bengal Writ  Petition\t No.<\/a>\n453 of 1974. decided on 4-12-74 and Jaganath's case [1966] 3\nS.C.R. 134 and 138, followed.\nRameshwar  Shaw [1964] 4 S.C.R. 921 926.   Hoorchand's\tcast\nA.I.R.\t1974  S.C. 2120; Golam Hussain\tv.  Commissioner  of\nPolice\t[1974]\t4  S.C.C.  530, 534 and\t Dulal\tRoy  v.\t The\nDistrict  Magistrate, Burdwan<\/a> [1975] 3 S.C.R.  186  referred\nto.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION: Writ Petition No. 429 of 1974.  Under
\nArt. 32 of the Constitution of India.\n<\/p>\n
Shiv Pujan Singh, for the petitioner.\n<\/p>\n
G. S. Chatterjee, for the respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nKRISHNA\t IYER,\tJ.-Shri\t S. P. Singh,  appearing  as  amicus
\ncuriae\thas urged a few points in support of his  submission
\nthat  the petitioner detenu, very poor and not\tfallen\tinto
\ncriminal  company,  is entitled to be set  free,  the  order
\nbeing illegal.\n<\/p>\n
The obnoxious acts, with futuristic import, relating to\t the
\ndetention,  have been set out in the grounds annexed to\t the
\norder  and  are\t repeated in the  affidavit  of\t the  Deputy
\nSecretary,  Home  (Special) Department, Government  of\tWest
\nBengal,\t based on the records available in the\tSecretariat.
\nThe District Magistrate of Purulia, nearly three long  years
\nago, passed the order of detention against the petitioner on
\nFebruary 2, 1972 on receipt of materials regarding the\tpre-
\njudicial activities of the detenu and on being\tsubjectively
\nsatisfied  of  the need for the detention under s.3  of\t the
\nMaintenance  of\t internal Security Act, 1971 (Act  of  1971)
\n(her r called the MISA, for short).\n<\/p>\n
293<\/span><\/p>\n
The  two  criminal  adventuress\t of  the  petitioner   which
\npersuaded the District Magistrate to prognosticate about his
\nprejudicial   activities  were\tallegedly  indulged  in\t  on
\nSeptember  3,  1971.  The grounds of detention are  that  on
\nthat date, in two separate dramatic sallies, the detenu\t and
\nhis  associates went armed with hacksaws, lathis  etc.,\t and
\nwhat not, committed theft of overhead copper catenary  wires
\nand  certain  other  items from a place\t between  Anaka\t and
\nBagalia railway stations.  On the first occasion, which\t was
\nduring\tbroad daylight, the miscreants were  challenged\t ‘by
\nthe  R. S. Members’ but were scared away by  the  petitioner
\nand  his gang repeated the theft of traction wire  etc.,  at
\nstone  throw.\tOn the second occasion, which was  at  about
\nmid-night about the same spot ‘When resisted by the duty RPF
\nRakshaks with the help Of villagers, ballasts were pelted at
\nthem by the violent in uders who made good their escape with
\nthe  gains of robbery. on these two frightful episodes,\t the
\ndetaining  authority came to the requisite conclusion  about
\ndanger to the community, which is recited in the order.
\nThe  question is whether, in the facts and circumstances  of
\nthe case, the order can be impugned as colorable or exercise
\nof  power based on illusory or extraneous circumstances\t and
\ntherefore  void.  An examination of the surrounding  set  of
\nfacts,\tserving as backdrop or basis, becomes  necessary  to
\nappreciate the argument that the subjective satisfaction  of
\nthe authority did not stem from any real application of\t his
\nmind  but as a ritualistic recital in a routine manner.\t  It
\nis admitted in paragraph 6 of the counter affidavit that the
\ntwo  incidents\twere  investigated as GRPS Case\t No.  1\t and
\nNo  .2. The petitioner was arrested in connection  with\t the
\nsaid  cases on September 9. 1971 and the police submitted  a
\nfinal  report  in  both the cases on  January  6,  1972\t and
\nFebruary  9,  1972 respectively, ‘not because there  was  no
\nevidence  against  the petitioner but  because\tthe  detenu-
\npetitioner  being a dangerous person, witnesses were  afraid
\nto  depose against him in open Court’.\tIt may be  mentioned
\nhere  that  the petitioners name was not in the FIR  but  is
\nalleged\t to  have  been\t gathered  in  the,  course  of\t the
\ninvestigation.\t However,  be was discharged  from  the\t two
\ncases  on  February 9, 1972 but was taken into\tcustody\t the
\nsame  day pursuant to the detention order.   Thereafter\t the
\nprescribed formalities were followed and there is no quarrel
\nabout non-compliance in this statutory sequence.
\nThe  crucial submission that deserves close study  turns  on
\nthe  colorable\tnature or mindless manner  of  the  impugned
\norder.\t What  are the facts germane to this issue?   It  is
\nseen  that  the\t petitioner’s  name  is\t not  in  the  first
\ninformation statements.\t Had a court occasion to adjudge the
\nguilt  of  an  accused person  charged\twith  serious  crime
\ncommitted  in the presence of quasi-police officers and\t his
\nname is not seen in the earliest report, to the police, that
\nwould\thave  received\tadverse\t notice\t unless\t  explained.
\nLikewise,  the\tcircumstance that the final  report  to\t the
\nCourt terminated the criminal proceedings may, unless  other
\nreasons\t are given, militate against the implication of\t the
\npetitioner since s. 169 Cr.P.C. refers to two situations one
\nof   which   at\t least\tnullifies  possible   inference\t  of
\nincrimination i.e., that
\n294<\/span>
\nthere  is no ‘reasonable ground of suspicion to justify\t the
\nforwarding of the accused to a magistrate’.  It behoves\t the
\ndetaining  authority to tell this Court how he\treached\t his
\nmental\tresult\tin  the face of a ‘release  report’  by\t the
\npolice.\t  For, the legal label that the satisfaction of\t the
\nexecutive authority about potential prejudicial activity  is
\n‘subjective’ does not mean that it can be irrational to\t the
\npoint  of  unreality.\tSubjective  satisfaction  is  actual
\nsatisfaction,  nevertheless.  The objective standards  which
\ncourts\tapply  may not be applied, the\tsubject\t being\tmore
\nsensitive;  but a sham satisfaction is no  satisfaction\t and
\nwill  fail  in court when challenged under Art.\t 32  of\t the
\nConstitution.\tIf  material factors are slurred  over,\t the
\nformula\t of  ‘subjective, satisfaction’ cannot\tsalvage\t the
\ndeprivatory  order.  Statutory immunology hardly saves\tsuch
\ninvalidity.   After  all, the  jurisprudence  of  ‘detention
\nwithout trial is not the vanishing point of judicial review.
\nThe  area and depth of the probe, of course, is\t conditioned
\nby  the particular law, its purpose and language.   But\t our
\nfreedoms  axe  not wholly free unless the judiciary  have  a
\nminimal\t look  at their executive deprivation,\teven  though
\nunder exceptional situations.\n<\/p>\n
We  may\t here refer to what a bench of five Judges  of\tthis
\nCourt observed in the vintage ruling Rameshwar Shaw(1) :\n<\/p>\n
\t      “It is however necessary to emphasise in\tthis
\n\t      connection that though the satisfaction of the
\n\t      detaining\t authority contemplated by S. 3\t (1)\n<\/p><\/blockquote>\n
\t      (a) is the subjective satisfaction of the said
\n\t      authority,  cases may arise where\t the  detenu
\n\t      may challenge the validity of his detention on
\n\t      the ground of mala fides and in support of the
\n\t      said  plea  urge that along with\tother  which
\n\t      show, mala fides, the Court may also  consider
\n\t      his  grievance that the grounds served on\t him
\n\t      cannot  possibly\tor  rationally\tsupport\t the
\n\t      conclusion drawn against him by the  detaining
\n\t      authority.   It  is only\tin  this  incidental
\n\t      manner  and  in  ‘  support  of  the  plea  of
\n\t      malafides\t  that\tthis  question\tcan   become
\n\t      justiciable;  otherwise the reasonableness  or
\n\t      propriety\t   of\t the\tsaid\tsatisfaction
\n\t      contemplated  by\tS.  3  (1)  (a)\t cannot\t  be
\n\t      questioned before the Courts.”\n<\/p><\/blockquote>\n
Back  to the facts.  Of course, the mere  circumstance\tthat
\nthe aim of the petitioner was gathered in the course of\t the
\ninvestigation is neither here nor there and cannot help\t him
\nin  the\t tall contention that for that reason the  order  of
\ndetention   is\t a   make-believe.    The   conspectus\t  of
\ncircumstances  placed before the authority and his  rational
\nresponse, having regard to the duty to immobilise  dangerous
\ndelinquents from molesting the community-these are pertinent
\nfactors\t  to   decode  the  responsible\t  reality   of\t the
\nsatisfaction,  although\t not the plenary  rightness  of\t the
\ndetention order.\n<\/p>\n
There  are  a  few  vital facts which  loom  large  in\tthis
\ncontext.   One\tis that\t court discharged the  accused,\t the
\nreason alleged in the counter being that
\n[1964] 4 S.C.R. 921, 926.\n<\/p>\n
295<\/span><\/p>\n
\t      “The  police submitted final report  in  those
\n\t      cases  on 6-1-72 and 9-2-72  respectively\t not
\n\t      because\tthere  was  no\tfacts\twhich\tshow
\n\t      malafides,  the  Court may also  consider\t his
\n\t      evidence\tagainst the petitioner\tbut  because
\n\t      the detenu petitioner being a dangerous person
\n\t      witnesses were afraid to depose against him in
\n\t      open court.”\n<\/p><\/blockquote>\n
What  is  the impact of a discharge of the  accused  by\t the
\ncriminal  court based on police reports on the\tvalidity  of
\nthe  detention\torder against the same person based  on\t the
\nsame  charge  in  the  context of a  contention\t of  a\tnon-
\napplication of the authority’s mind ? The two  jurisdictions
\nare  different, the two jurisprudential principles  diverge,
\nthe  objects  of  enquiry and nature of\t mental\t search\t and
\nsatisfaction  in the two processes vary.  The argument\tthat
\ndetention  without  trial,  for\t long  spells  as  in\tthis
\ninstance,  is  undemocratic has its  limitations  in  modern
\ntimes  when criminal individuals hold the community to\tran-
\nsom,  although vigilant check of executive abuse  becomes  a
\nparamount  judicial necessity.\tWe, as judges and  citizens,
\nmust  remember\tthat, in law as in life, the dogmas  of\t the
\nquiet  past  are not adequate to the demands of\t the  stormy
\npresent\t and  the  philosophy  and  strategy  of  preventive
\ndetention  has come to stay.  We may merely observe that  we
\nare  not legally impressed with counsel’s  persistent  point
\nthat  solely  or  mainly because  the  petitioner  has\tbeen
\ndischarged  in the two criminal cases he is entitled  to  be
\nenlarged from preventive captivity.\n<\/p>\n
Even so, it does not follow that the extreme view propounded
\nby  the\t counsel for the State that the termination  of\t the
\nproceedings  in a criminal case on identical facts is of  no
\nconsequence  is\t sound.\t  In this connection,  we  may\tdraw
\nattention to a few decisions of this Court cited at the bar.
\nChandrachud J., speaking for the Court, recently observed in
\nSrilal\tShaw v. The State of West Bengal<\/a>(1), dealing with  a
\nsituation somewhat like the one in this case, thus):\n<\/p>\n
\t      “This  strikes us as a typical case  in  which
\n\t      for  no  apparent reason a  person  who  could
\n\t      easily  be prosecuted under the punitive\tlaws
\n\t      is  being preventively detained.\tThe  Railway
\n\t      Property\t(Unlawful  Possession)\tAct,  29  of
\n\t      1966,  confers  extensive powers to  bring  to
\n\t      book   persons  who  are\tfound  in   unlawful
\n\t      possession  of  railway property.\t  The  first
\n\t      offence is punishable with a sentence of\tfive
\n\t      years  and  in  the  absence  of\tspecial\t and
\n\t      adequate\treasons\t to  be\t mentioned  in\t the
\n\t      judgment\tthe imprisonment shall not  be\tless
\n\t      than one year.  When a person is arrested\t for
\n\t      an offence punishable under that Act, officers
\n\t      of the Railway Protection Force have the power
\n\t      to  investigate into the alleged\toffence\t and
\n\t      the  statements  recorded by them\t during\t the
\n\t      course  of  investigation do not\tattract\t the
\n\t      provisions of section 162, Criminal  Procedure
\n\t      Code.  (See  Criminal Appeal No. 156  of\t1972
\n\t      decided on 23-8-1974).  If the facts stated in
\n\t      the ground are true, this was an easy case  to
\n\t      take to a successful termination.\t We find  it
\n\t      impossible  of  accept  that  the\t prosecution
\n\t      could not be proceeded with as the witnesses
\n\t      (1)   Writ  Petition No. 453 of 1974,  decided
\n\t      on 4-12-74.\n<\/p><\/blockquote>\n
\t       296<\/span><\/p>\n
\t      were  afraid to depose, in the public  against
\n\t      the  petitioner. The Sub-inspector  of  Police
\n\t      who  made\t the  Panchnavna,  we  hope,   could
\n\t      certainly\t not  be afraid of  giving  evidence
\n\t      against  the  petitioner.\t  He  had  made\t  the
\n\t      Panchnama\t  of  seizure  openly  and  to\t the
\n\t      knowledge of the petitioner.  Besides, if\t the
\n\t      petitioner’s statement was recorded during the
\n\t      course of investigation under the Act of 1966,
\n\t      that  itself  could  be  relied  upon  by\t the
\n\t      prosecution  in order to establish the  charge
\n\t      that the petitioner was in unlawful possession
\n\t      of Rail-, way property.” (emphasis ours)
\n\t      Again,   in  Noorchand’s\tcase(1)\t Gupta\t J.,
\n\t      delivering judgment for Court, held:
\n\t      “We do not think it can be said that the\tfact
\n\t      that  the petitioner was discharged  from\t the
\n\t      criminal\tcases is entirely irrelevant and  of
\n\t      no  significance; it is a\t circumstance  which
\n\t      the  detaining  authority\t cannot\t  altogether
\n\t      disregard.   In the case of Bhut Nath Mate  v.
\n\t      State  of West Bengal (AIR<\/a> 1974 SC  806)\tthis
\n\t      Court observed:\n<\/p><\/blockquote>\n
\t      “.  detention power cannot be quietly used  to
\n\t      subvert,\t supplant  or  to   substitute\t the
\n\t      punitive\tlaw of the Penal Code.\t The  immune
\n\t      expedient\t of throwing into a prison cell\t one
\n\t      whom  the\t ordinary law would  take  care\t of,
\n\t      merely because it is irksome to undertake\t the
\n\t      inconvenience  of\t proving guilt in  court  is
\n\t      unfair abuse.”\n<\/p><\/blockquote>\n
\t      If  as  the petitioner has  asserted,  he\t was
\n\t      discharged  because  t ‘here was\tno  material
\n\t      against  him  and not because  witnesses\twere
\n\t      afraid  to  give evidence against\t him,  there
\n\t      would be apparently no rational basis for\t the
\n\t      subjective   satisfaction\t of  the   detaining
\n\t      authority.  It is for the detaining  authority
\n\t      to  say that in spite of the discharge he\t was
\n\t      satisfied,  on some valid material, about\t the
\n\t      petitioner’s  complicity in the criminal\tacts
\n\t      which  constitute the basis of  the  detention
\n\t      order.   But, as stated already, the  District
\n\t      Magistrate Malda, who passed the order in this
\n\t      case, has not affirmed the affidavit that\t has
\n\t      been filed on behalf of the State.”\n<\/p><\/blockquote>\n
There  was  reference at the bar to the ruling\treported  as
\nGolam  Husvain v. Commissioner of Police(2) where the  Court
\nclarified  that there was no bar to a detention order  being
\nmade after the order of discharge by the criminal court, but
\nemphasized the need to scan the ,order to prevent  executive
\nabuse in the following words:\n<\/p>\n
\t      “Of  course,  we can visualise  extreme  cases
\n\t      where  a Court has held a criminal case to  be
\n\t      false  and  a detaining  authority  with\tthat
\n\t      judicial\tpronouncement  before  him  may\t not
\n\t      reasonably   claim  to  be   satisfied   about
\n\t      prospective  prejudicial activities  based  on
\n\t      what a Court has found to be baseless.”
\n\t       (1) A.I.R. 1974 S.C. 2120.\n<\/p><\/blockquote>\n
\t       (2) [1974]4 S.C.C. 530.\n<\/p><\/blockquote>\n
\t       297<\/span><\/p>\n
Maybe,\t  we  may as well refer to the,\t vintage  ruling  in
\nJagannath’s care(1) where Wanchoo J., (as he thn was)  spoke
\nfor a unanimous Court :\n<\/p>\n
\t      order  of\t detention should show that  it\t had
\n\t      acted  with all due care and caution and\twith
\n\t      the  sense of responsibility necessary when  a
\n\t      citizen is deprived his liberty without trial.
\n\t      We  have\ttherefore  to  see  whether  in\t the
\n\t      present case the authority concerned has acted
\n\t      in this manner or not.  If it has not so acted
\n\t      and  if it appears that it did not  apply\t its
\n\t      mind  properly  before  making  the  order  of
\n\t      detention\t the order in question would not  be
\n\t      an  order\t under\tdie  Rules  and\t the  person
\n\t      detained would be entitled to release.”\n<\/p><\/blockquote>\n
The precedential backdrop help crystallize the jurisprudence
\nof,  preventive detention, an odd but  inevitable  juridical
\nphenomenon,  in a suicide manner and to the extent  relevant
\nto the case.  Although. the circumstances of each case\twill
\nultimately  demarcate the callous, or colorable exercise  of
\npower  from  the  activist  or\talert  application  of\t the
\nexecutive’s  mind in making the impugned order, some  clear.
\nguidelines, though overlapping, help application of the law:\n<\/p>\n
\t      (1)   The discharge or acquittal by a criminal
\n\t      court  is not necessarily a bar to  preventive
\n\t      detention\t on the same  facts  for  ‘security’
\n\t      purposes.\t But if such discharge or  acquittal
\n\t      proceeds\ton  the footing that the  charge  is
\n\t      false or baseless, preventive detention on the
\n\t      same condemned facts may be vulnerable on\t the
\n\t      ground that the power under the MISA has\tbeen
\n\t      exercised in a malafide or colorable manner.
\n\t       (2)  The\t executive  may\t act  on  subjective
\n\t      satisfaction  and is immunised  from  judicial
\n\t      dissection of the sufficiency of the material.
\n\t      (3)   The\t satisfaction, though attenuated  by
\n\t      ‘subjectivity’ must be real and rational,\t not
\n\t      random   divination,   must   flow   from\t  an
\n\t      advertence to relevant factors, not be a\tmock
\n\t      recital  or  mechanical chant  of\t statutorily
\n\t      sanctified phrases.\n<\/p><\/blockquote>\n
\t      (4)   The\t  executive   conclusion   regarding
\n\t      futuristic   prejudicial\tactivities  of\t the
\n\t      detenu and its nexus with his past conduct  is
\n\t      acceptable  but not invulnerable.\t  The  court
\n\t      can lift the verbal veil to discover the\ttrue
\n\t      face.\n<\/p><\/blockquote>\n
\t      (5)   One test to check upon the\trecolourable
\n\t      nature   or  mindless  mood  of  the   alleged
\n\t      satisfaction of the authority is to see if the
\n\t      articulate  ‘grounds’  are too  groundless  to
\n\t      induce  credence in any reasonable man  or  to
\n\t      frivolous to be brushed aside as fictitious by
\n\t\t\t    a
\n\t      (1) [1966] 3 S.C.R. 134,138.\n<\/p><\/blockquote>\n
\t      298<\/span><\/p>\n
\t      responsible  instrumentality.  The court\tmust
\n\t      see  through mere sleights of mind  played  by
\n\t      the detaining authority.\t‘
\n\t      (6)   More   concretaly,\tif   witnesses\t are
\n\t      frightened  off by a desperate  criminal,\t the
\n\t      court may discharge for deficient evidence but
\n\t      on   being  convinced  (on  police  or   other
\n\t      materials\t  coming   within  his\t ken)\tthat
\n\t      witnesses\t had been scared of testifying,\t the
\n\t      District\tMagistrate  may\t still\tinvoke\t his
\n\t      preventive power to protect society.
\n\t      (7)   But\t  if   on   a\trational   or\tfair
\n\t      consideration   of  the  police\tversion\t  or
\n\t      probative\t circumstances\the would  or  should
\n\t      necessarily    have    rejected\t it,\t the
\n\t      routinisation of the satisfaction, couched  in
\n\t      correct diction, cannot carry conviction about
\n\t      its reality or fidelity, as against factitious
\n\t      terminological  conformity.\t  And  on  a
\n\t      charge  of malafides or misuse of power  being
\n\t      made,  the court can go behind the facade\t and
\n\t      reach at the factum.\n<\/p><\/blockquote>\n
\t      So  viewed,  how does  the  petitioner’s\tcase
\n\t      stand?\n<\/p><\/blockquote>\n
The  petitioner’s  identity and involvement  must,  in\tsome
\nmanner,\t  brought  home,  sufficient  for   the\t  subjective
\nsatisfaction  of  a responsible officer not merely  for\t his
\nhunch or intuition.  Let us assume in favour of the  officer
\nthat such material was present before him when he passed the
\norder  of detention.  This should be revealed to  the  court
\nhearing the habeas corpus motion, in a proper return in\t the
\nshape  of an affidavit.\t While we agree that the  detainer’s
\nown  oath  is  not  always insisted  on\t as  the  price\t for
\nsustaining  the\t order,\t subjective  satisfaction,  being  a
\nmental\tfact  or state is best established by  the  author’s
\naffidavit,  not a stranger in the Secretariat familiar\twith
\npapers,\t  but  the  mind  of  the  man\twho   realised\t the
\nimperativeness\tof the detention.  This is not\ta  formality
\nwhen  the  subject-matter is personal liberty and  the\tmore
\n‘subjective’ the executive’s operation the more sensitive is
\nprocedural  insistence.\t  Here\tthe  District\tMagistrate’s
\naffidavit is unavailable.\n<\/p>\n
Another\t obstacle in the way of the State, which has  to  be
\nsurmounted,  consists  in the circumstances  that  both\t the
\ncriminal  occurrences took place in the presence  of  public
\nservants, members of the para-police forces attached to\t the
\nrailway\t administration.  Indeed, the case is that  some  of
\nthese  officials  were terrorized and over-awed\t before\t the
\nstolen articles were removed.  Naturally, one would expect a
\nserious crime like railway property being removed by show of
\nviolence  being the subject-matter of the  prosecution.\t  In
\nthe present case. the District Magistrate does not swear  an
\naffidavit  himself  and\t what is stated is that\t he  is\t now
\nposted\tin  Sikkim  and\t is  not  ‘presently  available\t for
\naffirming the affidavit’.  In a case where a personal expla-
\nnation\tis  necessary, Sikkim is not too distant and  so  we
\nhave  to  see Whether the District Magistrate  has,  in\t the
\ninstant case, to show why,
\n299<\/span>
\nwhen the cases were discharged by the trying magistrate,  he
\nthought there was enough material for preventive  detention.
\nTrue, the Home Department official, informed by the records,
\nhas  sworn  that the police report for\tnon-prosecution\t was
\n‘not because there was no offence against the petitioner but
\nbecause\t the  detenu  petitioner being\ta  Jangerous  person
\nwitnesses were afraid to depose against him in open  court’.
\nMaybe  this is true, but the subjective satisfaction of\t the
\nDistrict  Magistrate must be spoken to by him,\tparticularly
\nin   a\tsituation  where  the  circumstances  of  the\tnon-
\nprosecution  strongly  militate against the reality  of\t the
\npetitioner’s  involvement  in the  occurrence.\t After\tall,
\nmerely\tto  allege that witnesses were\tpanicked  away\tfrom
\nTestifying  to truth cannot be swallowed gullibly  when\t the
\nwitnesses  Themselves  are members of a\t railway  protection
\nforce  and  the offenses against public property  are  of  a
\ngrave,\tcharacter.   The observations of Chandrachud  J.  in
\nSrilal Shaw, quoted earlier, are in point.
\nIn the case of non-officials, maybe they are afraid to\tgive
\nevidence against dangerous characters for fear of their life
\nbut such an excuse or alibi is ordinarily unavailable  where
\nthe  witnesses\tare  para-police public\t servants.   If\t the
\nDistrict Magistrate had sworn an affidavit that he  identity
\nof  the\t petitioner, as participant in the  crime,  was\t not
\nknown  of  the\trailway\t protection  force  and\t that  other
\nvillagers  made them out is the gang was decamping with\t the
\nbooty, something may be said for he plea.  There is no\tsuch
\naverment in the counter-affidavit and the pare ipse dixit of
\nthe  Deputy Secretary in the Home Department that  witnesses
\nwere  afraid to depose is too implausible and tenuous to  be
\nacceptable  even  for subjective satisfaction.\t After\tall,
\nfreedom is not bubble to be blown away by executive whif  or
\nwhim.  For, as pointed put by Gajendragadkar J. (as he\tthen
\nwas) in Rameshwar Shaw (supra) it p. 930 :\n<\/p>\n
\t      “At  the\tpoint  of  time\t when  an  order  of
\n\t      detention\t is going to be served on a  person,
\n\t      it  must be patent that the said person  would
\n\t      act  prejudicially if he is not  detained\t and
\n\t      that is a consideration which would be  absent
\n\t      when  the authority is dealing with  a  person
\n\t      already in detention.”\n<\/p><\/blockquote>\n
Had  the statement been of the detaining authority, had\t the
\ndeponent  furnished some fact which would or could make\t any
\nreasonable man believe that the witnesses were likely to shy
\naway  from  the\t court for far of the  petitioner,  bad\t the
\naffidavit thrown some light on the dark lint behind the non-
\nprosecution in court due to non-disclosure of evidence or to
\nindicate  that the final report of investigation was not  on
\naccount\t of  the  absence of any  reasonable  suspicion\t but
\nbecause\t of  the  deficiency of\t evidence  (S.\t169  Cr.P.C.
\ncontemplates  both types of situations and the copy  of\t the
\nreport\twas  easy  to produce), we  might  have\t upheld\t the
\ndetention.    In  Dulat\t Roy  v.  The  District\t  Magistrate
\nBurdwan<\/a>(1) this question has been dealt with in some detail.
\nThe flaw in the order flows from non-explanation of how\t the
\nDistrict   Magistrate\thas  made  his\tinference   in\t the
\ncircumstances indicated.\n<\/p>\n
(1)  [1975] 3 S.C.R. 186.\n<\/p>\n
300<\/span><\/p>\n
Without\t more,\twe  are\t inclined  to  the  view  that\t the
\nobservations  of  Wanchoo J. (as he than was)  in  Jagannath
\n(supra), at p. 138, applies
\n\t      “This  casualness also shows that the mind  of
\n\t      the authority concerned was really not applied
\n\t      to the question of detention of the petitioner
\n\t      in  the  present case.  In this  view  of\t the
\n\t      matter  we are of opinion that the  petitioner
\n\t      is  entitled to release as the order by  which
\n\t      he  was detained is no order under  the  Rules
\n\t      for  it was passed without the application  of
\n\t      the mind of the authority con
\nIn  the present case, on account of the special reasons\t set
\nout  above,  who are far from satisfied that  the  detention
\norder  is  not a cloak to avoid the irksome procedure  of  a
\ntrial in Court.\n<\/p>\n
There  are two social implications of dropping\tprosecutions
\nand resorting to substitutive detentions which deserve to be
\nremembered.   Where a grievous crime against  the  community
\nhas been committed, the culprit must be subjected to condign
\npunishment  so\tthat the penal law may strike  a  stem\tblow
\nwhere  it  should.   Detention is a  softer  treatment\tthan
\nstringent  sentence  and there is no reason why\t a  dangeral
\nshould\tget  away with it by enjoying an unfree\t but  unpaid
\nholiday.   Secondly, if the man is innocent, the process  of
\nthe law should give him a fair chance and that should not be
\nscuttled by indiscriminate resort to easy but unreal  orders
\nof detention unbound by precise time.  That is a negation of
\nthe   correctional  humanism  of  our  system\tand   breeds
\nbitterness, alienation and hostility within the cage.
\nWe  accordingly\t allow\tme  writ  petition,  make  the\trule
\nabsolute and’ direct that the petitioner set free.
\nV.P.S.\n<\/p>\n
Petition allowed.\n<\/p>\n
301<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sadhu Roy vs The State Of West Bengal on 22 January, 1975 Equivalent citations: 1975 AIR 919, 1975 SCR (3) 291 Author: V Krishnaiyer Bench: Krishnaiyer, V.R. PETITIONER: SADHU ROY Vs. RESPONDENT: THE STATE OF WEST BENGAL DATE OF JUDGMENT22\/01\/1975 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH CITATION: 1975 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-4050","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSadhu Roy vs The State Of West Bengal on 22 January, 1975 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sadhu-roy-vs-the-state-of-west-bengal-on-22-january-1975\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sadhu Roy vs The State Of West Bengal on 22 January, 1975 - 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