Madan Gope v. The State of West Bengal

SARKARIA, J.-Madan Gope, petitioner challenges the validity of the -Order of his detention made by the District Magistrate, Purulia under ·s. 3 of the Maintenance of Internal Security Act, 1971. The order. ·states that the detention has been made to prevent him from acting in any manner prejudicial to the maintenance of public order.

The impugned order is founded on two grounds which run as under:

"l. On 1-11·-73 at about 09.00 hrs. you along with your associates attacked Home Guard No. 900 Aswini Mohanti and 3 others of Layadi Home Guard Camp who were on cordoning patrol near Kashipur village, P.S. Joypur close to Bihar border when they arresti~d you with rice, Dalda, Kerosene Oil, wheat, which were being carried by you and threatened them with death and snatched away the seized commodities from their custody ..

In ccinsequence of your said activity which comes with-in the p\llrview of section 143/186/332/506, l.P.C. and 7(i) (a) (ii) of Act X of 1955, the maintenance of Public Order was disturbed.

The said activity thus attract sub-clause (ii) of Claus~~ (i) of sub-section (1) of section 3 of the Maintenanc·e of Internal Security Act, 1971 (Act 26 of 1971).

¶2On 6-11-73 at about 19.00 hours, you along with your associates attacked the investigating Police Officer and hi:; Police Party with deadly weapons and attempted to resist you1r arrest while they went to Sidhi village under Joypur P.S.,

MADAN v. WEST BENGAL (Sarkaria, ]. ) 533 District Purulia to investigate a case. You and one of your associates were arrested with deadly weapons.

These violent and dangerous activities on your - part created terror and panic amongst the local people who were over-awed and thus you have disturbed Public Order.

'8 In consequence of your said activity which comes_ with-

in the purview of sections 148/149, 307 /506/186 I.P.C., the maintenance of public order was disturbed.

The said activities thus attract Sub-Clause (ii) of Claus·e (a) or Sub-section (1) of Section 3 of the Maintenance of Internal Security Ac.t, 1971 (Act 26 of 1971) ."

The return has been filed by the District Mal{istrate who had passed the impugned order in which it is averred : -

"I say that I made the detention order after being satis-fied from the materials on records in support of the grounds of detention in question that with a view to preventing the said detenu from acting in any manner prejudicial to the main-tenance o! Public Order, it was necessary to detain him ... ; I further say that the grounds furnished to the said detenu are the grounds on which l based my satisfaction for m_aking the order ot detention taking those grounds separately and col-lectively .... "

The main contention of Shri Goswami, learned Counsel appearing as amicus curiae for the petitioner, is that neither of the grounds of detention was relevant to Public Order. According to Counsel these incidents, at the most, affect 'law and order'. In support of his con-tention v. he has referred to Bakhtawar Singh v. The State;(~) Man Singh

State;(2) A.run Ghosh v. State of W. Bengal( 3 ) Kanu Biswas v. The Staie of West Bengal(~); Kishori Mohan Bera v. The State of Wesi Bengal(.6 ) and Shyamlal Chakravarty v Commissioner of Police, Calcuti.a and another( 6 ).

In reply Mr. Chatterjee, learned Counsel for the State submits that in these criminal incidents, the petitioner had threatened and tried to obstruct public servants in the discharge of their duty. When.ever a criminal incident is accompanied by such threat or resistance, proceeds the argument, it raises a problem of Public Order as distinguished from a simple problem of law and order. Reference in this connection has been made to Kanu Biswas v. State of West Bengal (supra); Babul Mitra v. State of West Bengal( 7 ) and Jndradeo Mahato v. State of West Bengal( 8 ).

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(1) AIR 1951Punjab157. (2) AIR 1953 Pepsu 16.

(3) [1970J 3, s.c.~. 288. (4) AIR 1972 S.C. 1656;

(5) AIR 1972SC1749. (6) AIR 1970 SC 269.

(7) AIR 1973 SC 197. (8) AIR 1973 sec 4.

Times out of number, it has been emphasised by this Court that since the Act gives extraordinary powers to the Executive to detain a person without trial, meticulou·s compliance with the letter and re-quirements of law is essential for the validity of an order of dekntion made thereunder.

Section 3 (1) (a) of the Act confers power on the authority to detain a person if it is satisfied that such detention is necessary to pre-vent him from acting in any manner prejudicial to :

(i) the defence of India, the relation of India with foreign

powers of the security o[ India or (ii) the security of the State or the maintenance of Public

Order, or (iii) the maintenance of supplies and services ·essential to

the ..:ommunity.

Clause (b) of s. 3 ( l) applies to a foreigner and is not relevant for our purpose.

It will be seen that the power can be exercised only on one or more of the grounds enumerated above. If the exercise of the power is not on the face of the order correlated t~ any of these grounds or concerns activifi.es, which are not germane to any of these grounds, such exercise would be vitiated for lack of jurisdiction. Furtjler, the satisfaction spoken of in s. 3 (1 )-which is the sine qua non to the exercise of the power is the subjective satisfaction of tb.e authority which cannot be tested in court by objective standards. Ordinarily, therefore, the court cannot go behind tho satisfaction express·ed on the face of the order. As pointed out by this Court in Dr. Ram Manohar Lohia v. State oj Bihar a11d Ors. (}1) "when an order on the face of it, is not in terms of the rule, a court cannot equally enter into an investigation whether the order of detention was in fact, that is to say irrespective of what is stated in it, in terms of the rule". Thus where the order ex f acie is made with a view to prevent an act prejudicial to the m1).intenance of Public Order, the· detaining authority cannot be p-ermitted to show that in facf the-order was made to prevent an act prejudicial to the maintenance of supplies and services essential to the life of the community.

The distinction between 'Public Order' and 'Law and Order' has fre-quently come up for consideration before this Court. Recently, in Ram Ranjan Chatterjee v. The State of West Bengal,( 2 ) this Court expl~ined the distinction between the two, thus :

"It may be remembered that qualitatively, the acts which affect 'law and order' are not different from the acts which affect 'public order'. Indeed a state of peace or' orderly tra11-quality which prevails as a result of the observance or enforce-ment of internal laws and .regulations by the Qovernment, is a

(I) [1966] 1 SCR 709.

(2) Writ Petition No. 476/74 decided on 22-1-75.

-feature common .to the concepts of 'law aad order' and 'public order'. .Every kind of disorder or contravention of law affects that orderly tranquillity. The distinction between the areas of .. 'law and order' and 'public order'· as .pointed __ by this Corirt in A run Ghosh's case (supra) "is one of degree and extent of the reach of the _act in question on society". · It-is the potentiality of the act to disturb the even tempo of the life of the community which makt:S _it prejudicial _to the mainten~ ance of public order. If the contravention in its eff..:ct is coµc fined only· to a . few individuals, directly involved, . as diStin- · guished from a winder spectrum of the public, it would raise -a problem of law and ord~r only. These concentric COriCf.'.pt's of 'law and order' and 'public order' may have a common epi-centre', but it is the length, magnitude and intensity of the · terroc-wave unleashed by a particular eruption of disordettliat helps distinguished it as an act affecting 'public order' from that concerning "law and order".

We may further, observe that the various grounds indicated in clauses (i), (ii) and (ill) of Section 3(1) (a) are not always mutually exclu-sive. . Nor can the prejudicial acts be categorised into water-tight :oom.- . f)\U1tllents. As pointed ·out by this Court in Indradeo Mahatds''tase fsupra) : · ·

"Similar acts in different situations -may give rise to differ-ent problems· : in one set of circumstances an act may poSi' only a law and order problem whereas in another it may gene-rate deep and widespread vibrations having serious enough im-pact on the civilized peace-abiding society so as to affect public order, one has to weigh the degree and sweep of the harm the act in question is capable of in its cont~xt: -Every .case.has therefore, to be considered on its.own facts and cir. · cumstance&."

-r .. ' Considered in the light of. the above principles, it is quitc}lear

that_ the activity which constitutes· the substratum of the first gr'otJnd of-detention; is manifestly a case of interstate smuggling· dr attemPt to smuggle essential commodities such as rice, Dalda, Kerosene oil' and wheat. Smuggling, ordinarily, is a calendestine activity.' ~Broadly speajdng,_ its C9llcept· is.repugnant to what is 'public'.-. All ;rlgh:tly ob-served by Falshaw J. in Bakhtawar Sim~h v. The Sta•e(·I) . : "'.Prima fade there is no connection between smuggling which is essentially a secret . opt<ration and the maintenance of public order in which the operative ~ord is 'public'". We will, however, hasten to add:that this broad _· proposition as to the distinction between an act of 'smuggling' and an act · affecting 'public order' is not an abstract or absolute proposition of Jaw. caBes. are conceivable where the act of smuggling may be accompanied by such violence and disorder that it throws out of gear the even tempo · 0r the life of the community in the locality or dismrbs public tranquillity.

ThP: broad distinction between an act of sm-qf?clinl? and one o[ejudicial to 'Public Order' drawn by 11s is helpful only for the P\Jri>9Se of deter- · . (I) AIR. 1951 Simla 151.

. 5 31! SUPREME COURI RE~QJUS [1975] 3 s.c.R.

mining whether in the circumstances of the present case, the smuggling activity attributed to the detenu, as incorporated in his first ground of detention, was germane to the maintenance of public order, for achiev-ing which the preventive detention in question has been professedfy made. In our opinion the answer to this question must be in the nega-tive. The c,nly fact whic'; has been mentioned in addition to the smug-gling of soinc essential commodities in that ground is that th1~ deti..11a II and his associates had threatened the Home-Guards and snatched away the seiud commodities from their custody. Further fact meD'lioned is that this activity comes within the purview of Ss. 143/186/332/506 I.P.C. and 7(i) (a) (ii) of Act X of 1955. This latter fact to the effect that such and such offences were committed was only a ccmclusion drawn by the authority. There is absolutely no mention that ainy scare was cause(ll in the locality. Nor is it alleged that the detenu or his ;1ssociates were armed with any deadly weapons, or that their acts had c;3used panic and terror among the people of the locality. The inci-dent w~ cootined to the detenu and his associates on one handi and the Home-guards who checked them on the other. Oearly therefore, .it was not an activity which was prejudicial to the maintenance of Public Order. At. the most, it could be said to be an acticvity affecting law and order. Nor can the order be justified on the ground tb.at this activity wa& manifestly prejudicial to the maintenance of supplies and services. esnntial to the colii!Ilunity. We have stated earlier that the court cannot go behi.ad the subjective satisfaction of the detaining authority as expressed in the detention order and permit it to justify its order on a ground different from the or1e mentioned on the f1U:e of the order.

We ure therefore of the opinion that the first ground of detention bad no r.;:all nexus with the maintenance of Public Order. Jn view of thi<i finding, it i.s not necessary for_ us to consider whether the criniinal act incorporated in the second l?l'OUnd of detention falls within the category of an act affecting Public Order or one concerniPg law and order. If one out of several grounds of detention is found to be irrelevant, tho order of •fotention shall stand vitiated. The reason is that iin such C3SC$, it cannot be reasonably predicated as to what extent the iirrelevant ground had influenced the subjective satisfaction of the detaining authority.

We haw gooe through the cases cited by Mr. Chatterjee. It has not been laid down therein as a proposition of law that whenever any act is accompanied by show of forre or threat to a public servant en-trusted with the maintenance of law and order, it must necessarily fall within the cate14ory of an act prejudicial to the maintenance of Public Order. Even in these cases, the broad test applied was, wh~~ther the act was of such a magnitude and gravity that it had disturbed the eVen tenioo of the life of the community in the area. Indeed, this is ess.--n-tially a question Of fact depending on the circumstances of each case.

In the result, we allow this petition, q:uash the impugned order o[ detention. make the rule absolute and direct that the pctitiom~r be r~­ II leased forthwith.

ORIGIN;AL JURISDICTION : Writ Petition No. 559 of 1974.

Petition Under Article 32 of the Constitution Gautam Goswami, for the petitioner.

G. S. Cha:tt~rjee, for the respondent.