KRISHNA LAL DUTTA

l'.

THE STATE OF WEST BEN'GAL

Ftbruary 21. 1974.

[M. H. BEG AN!) R. s. SARK.ARIA, JJ.J

P1eventive dete11tio, r-Matters tOktn into qccount for ordering dett•nJion- Duty to commu11ictJtt to detenu to enable him to' explain.

. The Drder detaining the petitioner under the Maintenance o!

Internal

urity Act, 1971, mentioned the sole ground that on the nil!ht of October 1 r. 1972~ the .petitioner .and his associates committed theftof some tea chests from aruniiing goods trdin and that they 6cd, when challenged, leaving behind three cheSts of tea at the P.O. In his pet:don for the isSue of a writ of habeas corpus the petitioner contended that it was i_mpossible to commit theft from ._ running train as described. In the counter affidavit, it was stated that what was meant by running train was a train which had come to a stop due to some traffic restriction. It was also stated that the petitioner was a noto~

riqus wagon breaker operating near the Railway Station, but this allegation was never communicated to the petitioner.

E'letr the record relating to the detention nowhere referred to the petitioner as a 'notorious wagon breaker'.

Jn the record the incident of 11th October was mentioned, a description of th,!;,. modus operandi of a gang of thieves operating on passenger trains as g1Yen. and it was . also mentioned that the activities of that gang commenced after the incident of 11th October. There was however no indication as to how any information whatsoever came to the District Magistrate, who passed the order of detention, from any source whatsoever that the petitioiier was a member. of that gang. · Allowina the petition, HELD : The Court is not concerned with the_ adequacy or sufficiency of \l. nd of detention. Jn the present case, there is clear nexus between the sole grc)und for detention given and the maintenance of the eSsenti81 supplies and services. but the ground is vague in so far as it is not apparent what is meant by the words "the P.O." The grounds given could not enable the petitioner to cffectivefy exercise bis constitutional right of 1naking a representation against bis detention.

Further. matters which were nevtr oommunicated to the petitioner have been taken into account while ordering the detention. Presuming that whatever was in the record operated against the petitioner be should have been given fuller information of the aUegations against him. No explanation has been given as to why that was not done.

[452 D-0]

[Those exercising drastic pawers of preventive detention should at least take care to ascertain whether a detention is being ordered in a manner and on materials which di:11clo.111e that it is really necessary to order a detention with a view .to preventiniz the person to be detained from acting in a manner pre judicial to the objects for which preventive detention may be lawfully ordered.l [452 C-Dl

Prabhu Dayal Deord.h v. District Magistrate, Kamrup &: Ors., A.T.R. 1974 S.C. 183, followed.

ORl\HSAL JUR1so1cTION : Writ Petition No. 845 of I9n.

Under Art 32 of the Constitution for the issue of a writ .in the nature of habeas corpus.

S. N, lain, for the paitioner.

P. K. Chakravarty and G. s. Chatterjee, for the respondent.

45(}

SUPREME COURT REPORTS

[ 1974 1 3 S.C.R.

1'hc Judgment of the <:ourt was. delivered l>y

BEG, J. The petitioner, a citizen: of India; has filed this habear corpus petition c; hallenging the order of . his. detention, dated

2rll-19n, passi'd. under Section 5 cfause <ai of Maintenance of Internal Sccurit} Act, 1971 (hereinafter referred to as 'the Act').

It appears that the petitioner was actually arrested on 20-11,1972 and that the. detention order was passed subsequently on 24-11-1972, and; on that very" d'ate, the .petitioner was served with thedocument

containini; the sole ground of detentlQD given as foflows :-

"I. That on 11-1(};72 at' about 01.55 hrs., you alona with your associates. being armeld with bombs and other weapons, victimised wagon No. NR ) 739:3 Ex Bro to KPD attached to. runnin~ j!Oods train in EC 249 DN near the Booster Sub-station df Dum Dum Jn. RIS when the train slowed down for traffic restriction and. committed theft in respect of tea chests.

Train guard RPF party challenged you and your associates when you hurled bombs towards the RPF party.

RPF RK Sitaram Rai fired one r.ound in self defence when you arjj your associates fled away leaving behind three chests of tea at the P.O.

Your action caused disruption of train service for a considerable : timei and affected supplies and services.

You have thus acted in a manner prejudicial to the inaintenance of supplies and serVices essential to the comn1unitv'". - After givin~ what is marked as ground number 1 only, implying thereby that. tliere was no other ground of detention, the document

proceeds:

"You are hereby infornied that you may make a representation to the State Gavernment against the detention qrder and that such representation shall be addressed to the. Assistant Secxeta:r'y/ Home (Special) Department, Government of West Bengal and forwarded through the Superintendent of the. Jail in Which you have been detained as early as Jl()Ssible.

Unkler Section 10 of the Maintert.ance elf Internal security Act, 1971 (Act 26 of 1971) your case shall be placed before Advisory Board within thirty days from the date of your detention under the order.

You are also informed that under Section 11 of the

 Mainlcnancc of Internal Security Act, 1971 . (Act. 26 of 1971 ) , the Advisory Board shall if you . desire to .be so heard, hear you in person, and, :if you desire to be so _heard by the Advisorty Board,.you shall intimate such desire in your representation to the State Government".

H , An annexure to the affidavit filed by a Special Secretary in the Home Department of the Government of West Bengal, who was

K. L. DUTTA v. WEST BENGAL (Beg. /.) 451

tlle District Magisl!'llte concerned when the impgned

detntion <Jrder was made against the. petitioner;

IS, !U copy of the petitioner's representation addressed to the Gc;)Ve.mmeot,

Jn the representation as well as in the petition before us, the peli• tioner asserts that the allegations against him. are absolutely untrue.-

In his application to this Court he states that it is "palpably .false and impracticable" to allege that the petitioner, with some associates,

committed theft of "°me tea chests from a running wagon and that ho !led when challeng~. leaving behind three chests of tea "at the P.O.". Be that as it may,_it is difficult to understand what is meant by "the P.O." In his representation to the Government, the petitioner had submitted that there was no evidence that he was identified by anybody as a participator in the incident.

In the affidavit in Qpposition to the petition, the official concerned, who had passed the "detention order, stated :

"The running__goods train as stated therein actually means a: goods train which had come to a stop due to traffic restriction and ilo_t actually a running ono as sought to be suggested by th_c petitioner".

The aflldavit also contained the statement :

"It appears from the records that the petitioner is a notorious wagon breaker operating near, Dum Dun1 Junccion Railway Station''.

Learned Counsel appearing for the State of West Bengal was asked to explain how the J:l"titioner could possibly make an effective representation against his detent:i'Qn when the District Mag'.istratc had a stationary train in mind which he actually described as "a rw1ning goods train" in the gr:ounds icf detention, \Vhcn it was not indicated what was meant by "the P.O.", and when the allegation that the petitioner was a "fiotorious wagon breaker operating near Dnm Dum Junction Railway Station" was never communicated to him although it, apparently, formed one of the grounds on which the detention was ordered. In reply, learned Counsel for the State of West Bengal stated that he had the whole record before him on which the detention was ordered and he placed that record before us.

We were unable to find any menti.Qn in this record that the petitioner was "a notorios wgon breaker".

On the other hand. we found a description there of the modus operandi of a gang of thieves operating on passenger trains which used to deprive the passengers of their trunks and other goods while one of" the mentbers of the gang sat near the passMgers with a newspaper spread out in front of him which would. be read out loudly to distract their attention and used also to obstruct their view. It is mentioned there that the activities of this gang commenced after the incident of 11-10-1972.

It is also mentioned there that a number of incriminating articles were recove1ed from members of this gang of thieves including the petitioner and that prosecutions were pending against them.

. 452 _ SUPREME _Cf>Ul\T REPORT_s __

0 -l 1974 J 3 S.C.R.

_ It is . true that the incident which occurred at: about Z a.m. on 11-10-1972, forming ihe ground df detention,· is also mentioned in the record, but, there is no indication as to _how __ any information . whatsoever came to the Djstnct Magistrate from any_ source_ wl!atSoever _that the petitioner was a member of the gang which was concerned with such an incident, Presumably, this was the whole record as learned Counsel for the State informed us. This makes the petitioner's assertion, that he was not only i)rrested on 20-10-1972 for reasons not disclosed . ll to him, but, when sufficient evidence could not be found against him by the local _officials, a detention order was made on a ground, covered by the Act,· whiclt could be conveniently trotted out at the time, seem plausible. l]eprivation of a citizen's personal liberty is a serious matter.

Those exercising drastic powers of preventive detention, which arc entrusted to them for protecting valuable social and public interests, should at least take care to ascertain whether a detention. is . being ordered in a manner and on materials 'Which disclose that it-is really

"necessary" to order a detention with a view to preventing the person to be detained from acting in any manner prejudicial to the objects for which preventive detention may be lawfully ordered. If they misuse

these powers, by acting unreasonably, capriciously, arbitrarily, or

in a malafide manner, public confidence in them is shaken. We arc 0 unable to say whether the District Magistrate acted unreasonably in making the detention order. --- But, presuming that, whalc•ver was in the record operated, as learned Counsel for the State asserted, against _the petitioner, he should have been given fuller information of allegations against hini: Tt is not explained why this was not done.

We arc not concerned here with the adequecy or. sufficiency of E a ground of detention.

T)lere is_ clearly -a nexus between the sole ground for detention given a_nd the maintenance of essential supplies and services.

Bnt, as indicatod above, we have found that matters which were never commuriicated to the petitioner also appear to have been taken into account while ordering the detention of the petitioner. Further more the sole ground of detention is vague in ,. so far as it is .not apparent what is meant by the words "the P.O.". ' Recently, it was held by this Court in Probhu Dayal Deorah Vs . . , District Magistrate, Kamrup_ & Ors.,( 1) that vagueness of a single .· .ground . could vitiate a detention order.

The grounds given cou:U not, !n ?ur oinion enabl~. the petitioner to effectively exercise his constitutional. nght oJ -making a, representation against his detention.

The result is that we allow this petition and declare the deten- G tion of petitioner to be illegal.- We oer that the petitioner .be released forthwith. -

V.P.S.

Petition allowed.,

(I) A.l.R. 19(4 S.C. 183.