Shyamal Mondal v. State of West Bengal

Vatdialingam, J. This petition under Art. 32 of the Constitution challenges the validity of the order dated March 2, 1971 passed by the District ~agistrate, 24 Pargana, in exercise of the powers conferred on him under sub-section ( 1) read with ·sub-section( 3) of s. 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 Act No. XIX of 1970 (hereinafter to be referred as the Act), directing the detention of the petitioner.

The impugned order states that the District Magistrate was satisfied that it was necessary that the petitioner should be detained with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order as provided by s. 3 (1) of the Act.

According to the affidavit in reply of the District Magistrate, he reported under s. 3 ( 4) of the Act to the State Government on March 3, 1971 regarding the fact of his having passed the order of detention together with the grounds of detention and all other particulars having a bearing on the name. It is further stated that the petitioner was arrested on March 5, 1971 and was served on the same day with the order of detention together with the grounds for passing the order of <fotention. The petitioner was also informed that he is entitled to make a representation to the State Government against •the order of detention and that such representation is to be addressed to the Assistant Secretary, Home (Special) Department, Government of West Bengal and forward-ed through the Superintendent of Jail. He was further informed that his case will be placed under s. 10 of the Act before the Advisory Board within 30 days from -the date of the order of detention. He was also informed that under s. 11 of the Act, the Advisory Board shall, if so desired by him, hear him in person /;..;.;..- and that the petitioner must intimate the said desire to be heard in the representations that he may make to the State Government.

The State Government considered the report of the District Magistrate together with o_ther materials placed before it and approved, on March 11, 1971 as required bys. 3(4) of the Act, the order of detention passed by the District Magistrate.

On the same day, as require(! by s. 3 ( 5) the State Government sent the necessary report to the Central Government. The. State Go'\>ernment on April 3, 1971 placed the case of the petitioner before the Advisory Board.

The petitioner sent two representations dated March 17, and April 19, 1971 denying the allegations made in the grounds for passing the order of detention and pleaded that he was innocent. He has admitted in these representations that he was arrested on March 5, 1971. In neither of these representations did the peti-tioner make a request that he should be provided an opportunity of being heard in person by the Advisory Board. The State Gov-ernment rejected the representations of the petitioner, but for-warded them to the Advisory Board for being considered. The Advisory Board after considering the materials placed before it relating to the detention of the petitioner including the represen-tations made by him on March 17, 1971 and April 19, 1971, submitted its report on May 11, 1971 to the State Government stating that it is of opiniop that there is sufficient cause for the detention of the petitioner. The State Government passed an orde.r on July 12, 1971 under s. 12(1) of the Act confirming the order of detention dated March 2, 1971 passed by the District Magistrate and directed that the petitioner's detention shall be continued till the expiration of twelve months from the date of his detention.

The petitioner has challenged the order of detention on the ground that he has never committed any offence nor has he been involved in any illegal activities as alleged in the grounds of deten-tion. He has further stated that the various allegations mentioned against him are false and that he never participated in any of the incidents referred to in the grounds of detention. The petitioner has further stated that he is innocent and that he has been illegally detained.

It will be noted from his averments in the writ petition that except denying that the allegations are false and that he has never participated in any of those incidents referred to in the grounds of detention, he has not alleged any mala fides nor challenged the jurisdiction of the officer who passed the order of detention or the various proceedings connected therewith.

Under s. 3 (1) of the Act, what is required is the satisfaction of the State Government or the relevant District Magistrate, as the case may be, of the necessity to detain a person with a view to .prevent him from acting in a manner prejudicial to the security of the State or the maintenance of.public order. In the order of detention dated March 2, 1971, the District Magistrate has stated that he was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the security of the State or t!ie maintenance of public order, it is necessary to detain the peti-tioner and that the order was being passed in exercise of the powers cotiferred on the District Magistrate by sub-section ( 1) read with sub-section ( 3) of s. 3 of the Act. In the grounds of detention furnished to the petitioner on March 5, 1971 along with the order dated March 2, 1971 the following particulars have been .given :

"(I) That, on 26-1-71 between 11.00 and 12.31 hours, you along with your associates being armed v.ith bombs, ballasts, pipe guns, lathis etc., assembled at Piali Railway Station and created terror among the passengers by charging bombs and showering ballasts indiscriminately and also moving from compartment to compartment of train Nos. SC 193 UP and SC 195 UP in search of your rivals, shouting that "if I get the Ras-cal, I will kill them" and in doing so you caused injury to some innocent passengers and broke the glass panes of driver's cab of SC 195 Up. You created disturbance of the public order thereby.

(2) That, on 2-2-71 at about 17.39 hours, you along with your associates, being an'ned with bomb,,, daggers etc., attacked and assaulted the guard of train No. SC 199 Up at Champahati Railway Station and also created terror among the passengers by charging a bomb. You created disturbanc.e of the public order thereby.

( 3) That on 9-2-71 at about 13.1 S hours you and your associates charged bombs and ballasts on duty Police party at Jadavpur Railway Station as they seized 10 bags of rice weighing about·J quintals from SC 195 Up, while you were taking the said stock to Calcutta rationing area illegally by train. Your attack grew so violent that the Police party had to open fire upon you in self-defence. Your violent activities created serious panic in the Station area and the public order was dis-turbed thereby."

In the two representations dated March 17 and April 19, 1971 made to the State Government, the petitioner after refering to the fact that he was arrested on March 5. 1971 has denied that he was involved in any of the types of violeiit activities referred to In the grounds for detention. He has further stated that he is leading a very honest life doing the work of mason and that the allegations made against him are false.

As we have already mentioned, the "petitioner did not ask.for an oportunity of being heard in person by the Advisory Board. He has not also alleged in these representations and ma1a (ides in passing the order of de.ntion.

·The District Magistrate who passed the order of detendon has filed a counter-affidavit. Tlie District Magistrate has stated that the petitioner is a rice smuggler operating in Subarban Railway trains in Southern Section of Eastern Railway and that he along with his associates armed with bombs and other deadly weapons attacked the passengers and the guard of railway trains and created terror by hurling bombs in Champahati and Piali Railway Stations. The District Magistrate further proceeds to state that the petitioner was detained for acting in a manner prejudicial to the security of the State or the maintenance of public order in the Jadavpur area of the distric.t of 24 Parganas for his having taken a leading and active part in violent activities. It is further stated in the coun-ter-affidavit that the activities of the petitioner disturbed the public order and were so persistent and violent that he became a terror to the residents of the locality and the railway travelling public and that but for his detention he could not have been prevented from acting in a manner prejudicial to the security of the State or maintenance of public order. It is further stated that the depo-nent after receiving reliable information relating to the anti-social and prejudicial activities of the petitioner and after carefully con-sidering these materials, he was fully satisfied that the petitionet was engaged and was indulging in activities which were prejudicial to the security of the State or the maintenance of public order, and that his detention was essential. On being thus satisfied. the District Magistrate proceeds to state that he bona fide passed the order of detention on his own satisfaction, judgment and reason-ing. The counter-affidavit then proo~eds to state about the order of confirmation passed by the State Government and other matters resulting finally in the order passed by the Government on July 12, 1971.

lt may be pointed out that in paragraph 6 of the counter· affidavit it has been mentioned that the Advisory Board submitted its report on May 11, 1971 "after hearing the petitioner." TI1is statement is obviously wrong because the petitioner never asked for being heard in person. The Advisory Board also does not say that the petitioner was heard in person. The counsel appearing for the State has expressed his regret regarding this mistaken averment made in the counter-affidavit. But that does not in any manner adv.ance the case of the petitioner, as we will presently show.

We have already referred to the fact that the petitioner has merely denied his being associated with the incidents referred to in the grounds of detention. We are satisfied from the averments made by the District Magistrate in the counter-affidavit. which have not been further controverted by the petitioner by filing any rejoinder that the order of detention has been validly and pro-pcrly passed.

Mr. V. Mayakrishnan, Amicus Curiae, appearing on behalf of the petitioner has urged that every one of the grounds bas referred to the activrties of the petitioner having resulted in disturbance of public order. But the order of detention refers to the fact that the District Magistrate was of the view that the petitioner should be detained _with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order. No ground showing as _to how any activity of the petitioner is prejudicial to the security of the State justifying the order of detention has been furnished to the petitioner. There-fore, according to the learned counsel, the order of detention is illegal inasmuch as the petitioner has not been informed of any grounds as to how his activities are prejudicial to the security of the State. Inasmuch as both the matters have been mentioned in the order of detention, it must be that the detaining authority has taken into account extrenuous and irrelevant matters in passing the order of detention. In particular, according to the learned counsel, it is only the matters referred to in sub-cl. (1) of cl. (a) of s. 3 (2) of the Act that will relate to the activities adversely affecting the security of the State. None of those matters have been mentioned in the grounds furnished to the petitioner. There-fore, it is not clear whether the detaining authority passed the order to prevent the petitioner from acting in any manner preju-dicial to the Security of the State or for maintenance of public order. For all these, reasons, the counsel urged, the order of detention is illegal.

Mr. S. P. Mitra, learned counsel appearing for the State drew our attention to the provisions contained ins. 3(2) of the Act and pointed out that the various acts mentioned in the grounds of detention come within the expressions "acting in any manner prejudicial to the security of the State or the maintenance of public order." In particular he relied upon cl. ( d) of s. 2 and pointed out that the petitioner has committed an offence under the Explo-sive Substances Act, 1908, (Act No. 6 of 1908) and, therefore, his· detention was legal.

We are not inclined to accept the contention of the learned counsel for the petitioner. As already mentioned, under s. 3 ( 1) of the Act, what is required is the satisfaction of the State Govern-ment or the relevant District Magistrate, as the case may be, of the necessity to detain a person with a view to prevent him from acting in a manner prejudicial to the security of the State or the main-tenance of public order, As defined by sub-section (2) of s. 3, the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order means ;

"(a) using or instigating any person by words, either spoken or written, or by signs or by visible repre-sentations or otherwise, to use, any lethal weapon-

(i) to promote or propagate any cause or ideology,

the promotion or propagation of which affects,

or is likely to affect, adversely the security of the State or the maintenance of public order. or (ii) to overthrow or to overawe the Government

established by law in India.

Explanation-In this clause, "lethal weapon" in-cludes fire-arms. explosive or corresive substances, swords, spears, daggers, bows and arrows; or

(b) committing mischief, within the meaning of section 425 of the Indian Penal Code, by fire or any explosive substance on any property of Government or any local authority or any corporation owned or con-trolled by Government or any University or other educational institution or on any public building, where the commission of such mischief disturbs, or is likely to disturb, public order; or

( c) causing insult to the Indian National Flag or to any other object of public veneration, whether by muti-lating, damaging, burning, defiling, destroying or other-wise, or instigating any person to do so.

Explanation-In this clause, "object of public veneration" includes any portrait or statute of an emi-nent Indian, installed in a public place as a mark of respect to him or to his memory; or

( d) committing, or instigating any person to com-mit, any offence punishable with death or imprison-ment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the commission of such offence disturbs, or is likely to dis-turb, public order; or

( e) in the case of a person referred to in clause (a) to (f) of section 110 of the Code of Criminal Proce-dure, 1898, committing any offence punishable with imprisonment where the commission of such offence disturbs or is likely to disturb, public order.

" It will be seen that the Act itself furnishes a dictionary meaning for the two expressions and a perusal of els. (a) to (e) clearly shows that any of the matters referred to therein will be both "pre-judicial to the security of the State or the maintenance of public order".

We are not inclined to accept the contention on behalf of the petitioner that it is only sub-cl. (1) of cl. (a) of s. 3(2) which deals with the matters, which adversely affect the security of the State. Injact that very sub-clause refers to the matters mentioned therein as affecting the security of the State ot the maintenance ·Of public order. Therefore, in this case the grounds of detention cannot be held to be vague nor can the order of detention be held to be invalid on the ground that the petitioner must have been detained·only to prevent him from acting in any manner prejudicial to the maintenance of public order and not to the security of the State. · In particular, under cl. ( d) of s. 2, a person will be con-sidered to be acting in a manner prejudicial to the security of the State or the maintenance of public order, if he commits any offence under the Explosive Substances Act, 1908. The various inci-dents mentioned in the grounds of detention may also come under cl. (b) of sub-s. (2) of s. 3 Section 3 of the Explosive Substances Act, 1908, is as follows :

"Sec. 3 : Any person who unlawfully and mali-ciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to pers011 or property has been actually caused or not, be punished with transporation for life or any shorter term, to which fine may be added, or with imprisonment for a term which may extend to ten years, to which fine may be added."'

The various grounds mentioned in the order of detention dearly brlhg the activities of the petitioner under s. 3 quoted above.

The date aa\i the place as well as the tinle when the incidents occurred, and <1lse the train numbers which were affected, as well as the association of the petitioner with those incidents, have been fully given in the grounds of detention. No doubt the names of the pei;sons, who are stated to be his associates have not been given. For all the above reasons, we are satisfied that the order of detention is valid.

In the result, rule nisi is discharged and this writ petition dis-missed.

' ORIGINAL JURISDICTION : Writ Petition No. 205 of 1971.

Petition under Art. 32 of the Constitution of India for a writ in the nature of habeas corpus.

Y. Mayakrishnan, for the petitioner.

S. P. Mitra, G. S. Chatterjee for Sukumar Basu, for die respondent.