Case: Khudiram Das Vs. The State Of West Bengal &amp; Ors

to the petitioner. Ground (e) must accordingly be rejected.17. That takes us to ground (d) which impugns the order of approval passed by the State Government under Section 3, sub-section (3) of the Act. This requirement of approval of the State Government imposed by Section 3, sub-s. (3) is intended to act as a check on the exercise of the power of detention by the District Magistrate under Sec. 3, sub-section (2) of the Act. Therefore, a fortiori all the basic facts and materials which weighed with the District Magistrate in reaching his subjective satisfaction must be placed before the State Government, so that the State Government can, as a supervisory authority, decide whether the power of detention has been properly or improperly exercised by the. District Magistrate. But in addition to such basic facts and materials, which constitute the grounds of detention, the District Magistrate is also required to send to the State Government under Section 3, sub-sec. (3) "such other particulars as in his opinion have a bearing on the matter." Obviously, these "other particulars"" would be different from the basic facts and materials which constitute the grounds of detention and would not be material which has gone into the formation of the subjective satisfaction of the District Magistrate. If there are any materials of such a nature as could reasonably be said to have influenced the District Magistrate in arriving at his subjective satisfaction, they would be part of the grounds of detention and not other particulars."It is not possible to categorise precisely what these "other particulars" can be, but they may include particulars relating to the background of the circumstances in which the District Magistrate reached his subjective satisfaction leading to the making of the order of detention or particulars found to be administratively necessary for him to communicate to the State Government, so that the State Government may be able to effectively discharge its function as an overseeing superior authority while determining whether or not to grant approval to the order of detention made by the District Magistrate. There is nothing in Article 22 (5) of the Constitution or in any provision of the Act which requires that these other particulars" should be communicated to the detenu. The only requirement of communication is in regard to the basic facts and materials which constitute the grounds of detention and if there are "other particulars" besides the grounds of detention which are communicated to the State Government they need not be disclosed to the detenu. We cannot import any requirement of disclosure in regard to these "other particulars" merely on the basis of a supposed intention of the legislature when there is nothing in the statute which evinces any such intention.18. The petitioner, however, relied very strongly on the following observations of this Court in Nardhan Sahas case W. P. No. 1989 of 1973, D/. 21-8-1974 = (Reported in AIR 1974 SC 2154 ):"The Preventive Detention Act, 1950,was considered by this Court and it is an established rule of this Court that a detenu has a right to be apprised of all the materials on which an order of detention is passed or approved."and contended that the detenu was, therefore, entitled to a disclosure not only of the grounds of detention but also of "other particulars" communicated by the District Magistrate to the State (government under Section 3, sub-section (3). We do not think the observations relied upon by the petitioner support his contention. There can be no doubt that when the Court made these observations, what it had in mind was the materials which constituted the grounds of detention and not "other particulars", for the making of the order of detention would be based on the former and not on the latter and so also its approval by the State Government. What the Court meant to say in making these observations was that all the materials on which the order of detention is made or approved that is, the materials constituting the grounds of detention, must be communicated to the detenu and not that "other particulars" communicated to the State Government under Section 3, subsection (3) which do not form the basis of the making of the order of detention or its approval should be disclosed to the detenu. The Court could not have intended to say that in addition to the grounds of detention "other particulars" mentioned in Section 3, sub-section (3) should also be communicated to the detenu when there is no requirement to that effect either in Article 22 (5) of the Constitution or in any provision of the Act. We may point out that in fact no such question arose for decision in that case and the Court was not called upon to decide whether "other particulars" communicated to the State Government under Section 3, sub-section (3) are required to be disclosed to the detenu. The Court merely reiterated the well-settled proposition that the materials constituting the grounds of detention on which the order of detention is made by the District Magistrate and approved by the State Government must be communicated to the detenu. The observations made by the Court did not go further than this and cannot be read in the manner contended on behalf of the petitioner.19. Now in the present case, as already pointed out above, the material from the history-sheet, which was not disclosed to the petitioner, did not form part of the grounds of detention on which the order of detention was made by the District Magistrate and approved by the State Government, but merely constituted "other particulars" communicated by the District Magistrate to the State Government under Section 3, sub-section (3). There was, therefore, no obligation on the District Magistrate or the State Government to disclose this material to the petitioner and the non-disclosure of it to the petitioner did not have the effect of invalidating the approval of the State Government to the order of detention. Ground (d) must also, therefore, fail and be rejected.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. The answer to these questions does not present any serious difficulty if only we consider the reason why the grounds are required to be communicated to the detenu as soon as may be after the detention. Obviously the reason is two-fold. In the first place, the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power. The detaining authority cannot whisk away a person and put him behind bars at its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenu, so that, not only the detenu may know what are the facts and materials before the detaining authority on the basis of which he is being deprived of his personal liberty, but he can also invoke the power of judicial review, howsoever limited and peripheral it may be. Secondly, the detenu has to be afforded an opportunity of making a representation against the order of detention. But if the grounds of detention are not communicated to him, how can he make an effective representation? The opportunity of making a representation would be rendered illusory.The communication of the grounds of detention is, therefore, also intended to subserve the purpose of enabling the detenu to make an effective representation. If this be the true reason for providing that the grounds on which the order of detention is made should be communicated to the detenu, it is obvious that the grounds meanall the basic facts and materialswhich have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention isis, therefore, clear that nothingless than allthe basic facts and materials, which influenced the detaining authority in making the order of detention, must be communicated to the detenu. That is the plain requirement of the first safeguard in Article 22 (5). The second safeguard in Article 22 (5) requires that the detenu shall be afforded the earliest opportunity of making a representation against the order of detention. No avoidable delay, no short fall in the materials communicated shall stand in the way of the detenu in making an early, yet comprehensive and effective, representation in regard to all basic facts and materials which may have influenced the detaining authority in making the order of detention depriving him of his freedom. These are the legal bulwarks enacted by the constitution-makers against arbitrary or improper exercise of the vast powers of preventive detention which may be vested in the executive by a law of preventive detention such as the Maintenance of Internal Security Act, 1971.That disposes of grounds (a) and (b) and we must now proceed to consider ground (c). Now before we consider ground (c), we must deal with an objection raised by counsel on behalf of the State, which, if well founded, would cut short an inquiry into this ground. Counsel on behalf of the State submitted that though the District Magistrate in his affidavit in reply admitted that besides the three incidents referred to in the grounds of detention, other material was also placed before him, he stated on oath that he did not take such other material into account in making the order of detention and this statement on oath made by him must be accepted as correct and that should be an end to all further inquiry by the Court. He strenuously protested against the Court requiring the State to produce the history-sheet of the petitioner containing other material which was before the District Magistrate. His argument was that it was not competent to the Court to probe further into the matter for the purpose of examining what was the nature of the other material before the District Magistrate and whether he was influenced by such other material in making the order of detention. This claim made by counsel on behalf of the State is Indeed a bold claim calculated to shut out judicial intrusion merely on the strength of ipse dixit of the detaining authority. We cannot countenance such a claim.Now, the proposition can hardly be disputed that if there is before the District Magistrate material against the detenu which is of a highly damaging character and having nexus and relevancy with the object of detention, and proximity with the time when the subjective satisfaction forming the basis of the detention order was arrived at, it would be legitimate for the Court to infer that such material must have influenced the District Magistrate in arriving at his subjective satisfaction and in such a case the Court would refuse to accept the bald statement of the District Magistrate that he did not take such material into account and excluded it from consideration. It is elementary that the human mind does not function in compartments. When it receives impressions from different sources, it is the totality of the impressions which goes into the making of the decision and it is not possible to analyse and dissect the impressions and predicate which impressions went into the making/of the decision and which did not. Nor is it an easy exercise to erase the impression created by particular circumstances so as to exclude the influence of such impression in the decision-making process. Therefore, in a case where the material before the District Magistrate is of a character which would in all reasonable probability be likely to influence the decision of any reasonable human being, the Court would be most reluctant to accept the ipse dixit of the District Magistrate that he was not so influenced and a fortiori, if such material is not disclosed to the detenu, the order of detention would be vitiated, both on the ground that all the basic facts and materials which influenced the subjective satisfaction of the District Magistrate were not communicated to the detenu as also on the ground that the detenu was denied an opportunity of making an effective representation against the order of detention.16. But in the present case we do not find that there is any such infirmity vitiating the order of detention against the petitioner. The material in the history sheet of the petitioner which was not disclosed to him referred to two circumstances. One was that the petitioner had picked up the habit of committing thefts of copper wires and he committed thefts of copper wires and the other was that there were several thefts of transformers from villages like Betrabad, Uttar Lakshipur, Sultanganj and Nandalalpur. So far as the first circumstance is concerned, it was merely a generalization based on the three incidents referred to in the grounds of detention and it did not refer to any other incidents of theft of copper wires besides the three enumerated in the grounds of detention did not, therefore, constitute any additional material prejudicia1 to the petitioner which could be said to have gone into the formation of the subjective satisfaction of the District Magistrate and the non-disclosure of it to the petitioner did not have the effect of invalidating the order of detention. The second circumstance was not directed against any activity of the petitioner at all. It merely provided the background of the social malady which must have been exercising the mind of the authority charged with the administration of law and order when it said that there were several thefts of transformers from Betrabad, Uttar Lakshipur, Sultanganj and Nandlalpur villages and it was in the context of this background that the three incidents referred to in the grounds of detention were considered by the District Magistrate. What were alleged against the petitioner were only the three incidents set out in the grounds of detention. The thefts of transformers referred to in the second circumstance were not attributed to the petitioner. They merely provided the backdrop of the prevailing situation in the area and did not constitute material prejudicial to the petitioner which ought to have been disclosed to him. There was, therefore, no material before the District Magistrate, other than the three incidents set out in the grounds of detention, which went into the formation of the subjective satisfaction of the District Magistrate and which ought, therefore, to have been communicated to the petitioner. Ground (e) must accordingly be rejected.17. That takes us to ground (d) which impugns the order of approval passed by the State Government under Section 3, sub-section (3) of the Act. This requirement of approval of the State Government imposed by Section 3, sub-s. (3) is intended to act as a check on the exercise of the power of detention by the District Magistrate under Sec. 3, sub-section (2) of the Act. Therefore, a fortiori all the basic facts and materials which weighed with the District Magistrate in reaching his subjective satisfaction must be placed before the State Government, so that the State Government can, as a supervisory authority, decide whether the power of detention has been properly or improperly exercised by the. District Magistrate. But in addition to such basic facts and materials, which constitute the grounds of detention, the District Magistrate is also required to send to the State Government under Section 3, sub-sec. (3) "such other particulars as in his opinion have a bearing on the matter." Obviously, these "other particulars"" would be different from the basic facts and materials which constitute the grounds of detention and would not be material which has gone into the formation of the subjective satisfaction of the District Magistrate. If there are any materials of such a nature as could reasonably be said to have influenced the District Magistrate in arriving at his subjective satisfaction, they would be part of the grounds of detention and not other particulars."It is not possible to categorise precisely what these "other particulars" can be, but they may include particulars relating to the background of the circumstances in which the District Magistrate reached his subjective satisfaction leading to the making of the order of detention or particulars found to be administratively necessary for him to communicate to the State Government, so that the State Government may be able to effectively discharge its function as an overseeing superior authority while determining whether or not to grant approval to the order of detention made by the District Magistrate. There is nothing in Article 22 (5) of the Constitution or in any provision of the Act which requires that these other particulars" should be communicated to the detenu. The only requirement of communication is in regard to the basic facts and materials which constitute the grounds of detention and if there are "other particulars" besides the grounds of detention which are communicated to the State Government they need not be disclosed to the detenu. We cannot import any requirement of disclosure in regard to these "other particulars" merely on the basis of a supposed intention of the legislature when there is nothing in the statute which evinces any such intention.Now in the present case, as already pointed out above, the material from the history-sheet, which was not disclosed to the petitioner, did not form part of the grounds of detention on which the order of detention was made by the District Magistrate and approved by the State Government, but merely constituted "other particulars" communicated by the District Magistrate to the State Government under Section 3, sub-section (3). There was, therefore, no obligation on the District Magistrate or the State Government to disclose this material to the petitioner and the non-disclosure of it to the petitioner did not have the effect of invalidating the approval of the State Government to the order of detention. Ground (d) must also, therefore, fail and be rejected.