Case: Durga Pada Ghosh Vs. State of West Bengal

1. This is a petition by Durga Pada Ghosh under Article 32 of the Constitution praying for a writ in the nature of habeas corpus on the ground that the order of detention made against him under the Maintenance of Internal Security Act 26 of 1971 (hereinafter called the Act) is void and unconstitutional.2. The detention order in this case was made by the District Magistrate, Burdwan on December 10, 1971, under(1) and (2) of Section 3 of the Act. The unlawful activities in which the petitioner was alleged to have been indulging are stated in the order of detention as followsOn September 15, 1971, at about 1 p.m. you with your associates, viz. Sudhir Dey and others at the point of dagger and exploding bombs snatched away Rs. 1, 900/from Shri Krishna Bahadur and Shyamapada Chakraborty of Raj Collegiate School on the road in front of the branch office of the State Bank of India, situated at Burdwan University. By such act in broad daylight you created panic and terror and the peaceful citizens of the area felt insecure to come out on the road and their even tempo of life was adversely affected.(2) On November 8, 1971 at about 08.45 hrs. you with your associates Sudhir Dey and others at the point of dagger snatched away Rs. 2, 100/on the road in front of Municipal office from Tapan Kundu of Borhat. This created a panic in the locality and the peaceful citizens were terrorized and felt hesitant to come on the road. This adversely affected the even tempo of life of the people of thethe same day, i.e., December 10, 1971, the District Magistrate reported this fact to the State Government as required by(3) of Section 3. Pursuant to this order of detention the petitioner was arrested on December 15, 1971 and on the same day the grounds of detention were served on him. The detention order was approved by the State Government on December 16, 1971 and on the same day this fact was reported to the Central Government as required by(4) of Section 3. On January 4, 1972, the petitioners representation was received by the State Government. The petitioners case was placed before the Advisory Board constituted under Section 9 of the Act on January 7, 1972. This was done in compliance with Section 10 of the Act. The petitioners representation was considered by the State Government on February 12, 1972. The Advisory Board gave its decision on February 16, 1972 and the detention order was confirmed by the State Government on March 17, 1972. This order was communicated to the petitioner on March 8, 1972.

Reasoning: Though the State Government did not consider the representation before forwarding the record to the Advisory Board, the delay on its part was not considered in the reported case to be so inordinate as to vitiate the order of detention. Seeking assistance from the analogy of the approach adopted in the reported case we were pressed on behalf of the respondent that in the present case also we should not hold the petitioners detention to be illegal merely because of the delay in considering the petitioners representation when it is explained that on account of theand obstructive attitude adopted by the Government staff in West Bengal in resorting tomovement" which had caused accumulation of large number of files in the Secretariat and also on account of sudden increase in the number of detention cases under the Act, the Government found itself unable to consider and dispose of the representation as speedily or as expeditiously as it would have done had the times been normal.Now it is not disputed before us that on the question of delay in considering the representation by the State Government no hard and fast rule can be laid down and it is a matter which falls for decision on the facts and circumstances of each case. It may in this connection be pointed out that in Jayanarayans case (supra), the writ petition was referred to a Bench of five Judges to consider as to what would be the question of period within which the State Government could dispose of the representation of the detenu because it was felt that there was an apparent conflict between Shyamal Chakraborty v. Commissioner of Police, Calcutta ((1970) 1 SCR 762   : (1969) 2 SCC 426.)   and Khairul Haque v. State of West Bengal (supra).(supra).10. We are not unmindful of the fact that the Act was brought on the statue book in July, 1971, because, as the objects and reasons show, in the prevailing situation in the country and the development across the border need for effective preventive action in the interest of national security was considered to be urgent. Because of such a situation it may well be that there were a large number of detention cases in the State of West Bengal. This circumstance of course is not wholly irrelevant. But in our opinion the State could not and should have made ample arrangements for coping with this situation keeping in view the limitations contained in the provisions of the Constitution dealing with the subject preventive detention. No doubt, the interest of national security with which is closely connected the maintenance of public order, is rightly accorded a certain degree of priority over the right of personal freedom of the individual but the constitutional limitations cannot for that reason alone be completely ignored in administering the law relating to preventive detention.11. We are unable, as at present advised, to hold that the view taken by this Court in Amulya Chandra Dev (supra), is erroneous requiring reconsideration by us. The circumstances relied upon in the explanation in that case are very close and similar to those in the present one. We have, therefore, no option but to hold that the State Government failed to consider the petitioners representation received on January 4, 1972, with reasonable dispatch or as expeditiously as possible. This representation was only considered on February 12, 1972, though themovement was admittedly over by the end of October, 1971. Nothing has been said about the situation in January and February, 1972.