TULSti{ RABIDAS

THE STATE OF WEs: BENGAL

January .27, L915

[V. R.. KRISHNA }YER, P: K. GOSWAMI AND R. S. SARKARIA, JJ.] .

Mai111e11a11ce of Intemal Security Act, Sec. 3-Subjective satisfaction, meal!· ing of-Some el'ide11ce gathered d11ri11g i11restigatio11 which in some manner roped ill the det, e11u, if s11fficie11t. ·

In .pursuan:e of the order of detention , made by the District Magistrate, West Dinajpur, on March i9, 1973, the p; ltitioner was taken into custody. The order of •detention was intended to prevent the petitioner from acting in a manner pr¢jlldicial to the maintenance of supplies essential to the community.

The lil'$t ground related to the ar.rest of the petitioner and his associates while they were. sinuggling 65 KGs. of 'paddy from West Dinajpur District to Maida District. On being challenged by the patrol party he could not produce any valid document in supp()rt of hi~ carrying paddy at West Dinajpur-Malda districts border.

The second ground related to the smuggling of paddy on 11f12,3·73 mid-night in 6' bullock .:arts by the petitioner and his associates from West Dinajpur District to Maida Di'slrict. On being challenged by the Resistance Group Members, the petitioner 'and his associates threatened to .kill them and therefore, being thus terrorised, they dred not apprehend the petitioner and his associates. "' ·

Dismissing the Writ Petition challenging the order of detention,

HELD : (i) The counter affidavit disclosed that a criminal ·:ase had been instiJuted against the petitioner and his associates for offences of illegal tran5port of paddy, for resistan:e to the J!Olice officers taking them into custody and for escape from lawful custody. It further stated that 'due to dangerous and dt:sperate nature of the detenu and his associates' the witness declined to give evidence in op::n court for fear of their lives and that the final report was submitted in the said case.

This mea, ns that the charge-sheet disclosed sufficient evidence to go before the Court and it was not a case of absence of reasonable grounds of suspicion.

[403H404B]

{ii) So far as the second groul)d is conzerned, the absence of material to show that a case has been charge-sheeted in ,:c)urt is not destrucive of the detention order provided there is some_ material fo'r subjective satisfaction of the authority concerned.

Whether the investigation was conducted properly or not. whether the. Dist:rict Magistrate should have pinned his faith on the result of investigation and like questions are not for the court to consider.

But the minimum which .must be placed before the court is that there was some evidence gathered during investigation which. in some manner, roped in the petitioner.

Jn the present case, there is some evidence for the District Magistrate to act.

[404E-H]

(iii) Rhetorica, l assertions that the Presidential proclamation of emergency has outlived its reality and must be annulled. cannot be transformed into proof. The rea>0ns given by this Court in Bhuth Nath's case A.I.R. 1974 S.C. 806, holds good here too.

[405EF]

Samsher Singh's case, A.I.R. 1974 S.C. 2192, referred to.

ORIGINAL JuRm1cnoN : Writ Petition No. 349 of 1974.

Petition under Art. 32 of the Constitution of India.

H. S. Manvah, for the petitioner.

S11kumar Ghosh and G. S. Chatterjee, for the respondent.

The Judgment of the Court was delivered by

KRISHNA IYER, J.--The case of the petitioner, a detenu in West Bengal, has been presented at persistent length by Sri arwah, appear ing as amic~1s curiae, but some of the many contentions pressed by him merit serious notice which alone we propose to deal with.

Now, the facts to the extent relevant.

The order for detention was made by the District Magisrate, West Dinajpur, on March 19, :1973 pursuant to which he was taken into custody nine. days later. The calendar of 'statutory' events discloses no infirmity but the content of the groun'ds given by the District Magistrate and the order of approval made by the State Government have been the focal points of attack.

Straightway W(: proceed to set out the two criminal involvements of the petitioner which allegedly persuaded the authority to direct detention with a view, hereafter, to inhibit this activities prejudicial to supplies essential to the community.

They are :

"( 1) That on 6-3-73 at about 01.30 hours you along with your associate Mangal Soran of Gopalpur, P. S. Bangshihari, Dist. West Dina_jpur were arrested with 65 kgs. of' paddy in gunny bags within 1 K.M. of West Dinajpur-Malda Border at Kandarpur, P. S. Banshihari, Dist. West Dinajpur, by the patrol party of Bagduar A/S Camp, P. S. Bangshihari, Dist. Dinajpur while you acd your said associates were smug· gling the said quantity of paddy from West Dinajpur district to Maida district.

Being challenged by the patrol party you could not produc:c any valid d<;>cumcnt in support of your carrying paddy at West Dinajpuf-Malda districts border. This activity of yours created scarcity of paddy within the jurisdiction of Bangshihari P. S. Elaka of West Dinajpur district and the price index of paddy soared high and high beyond the purchasing capacity of the common people of that area.

Thus you acted :in a manner prejudicial to the maintenance:. of supplies essential to the oornmunity.

(2) That on 11/12/3-73 mid-n.ight you along with yoa; r associates were found smuggling paddy in 6 bullock carts from Rakhalpukur, P.S. Banshihari., Dist. West Dinajpur to Maida district by some members of the local Resistance

group. namely Kamal Chandra Roy of Deogaon. Narayan Chandra Sarkar of Mirshati, both of P.S. Banshihari. Dist.

West Dinajpur and others.

Being challenged by the said Resistance Group Members, you and your associates threa- tened to kill them and being thus terrorised the Resistance Group Members dared not apprehend you and your asSO· ciates These activities of yours are mainly responsible for the rise in price of paddy and rice within Banshihari P.S. jurisdiction of West Dinaipur district. Bv such illegal act of smuggling of paddy you and your associates created scarcity of paddy and rice in Banshihari P.S. jurisdiction, Pist.

West Dinajpur allld thereby acted in a manner preiudicial to the maintenance of supplies C!sential to the community. ·

From the above facts it is clear that you and your associates are acting in a manner prejudicial to the maintenance of supplies and services essential to the community."

The past is the precurser anti predictor of the future and this commonsense canon is usually-and in this case-applied by the authority to foretell the danger to the services and supplies essential to the community by repetitive criminal activity of the prospective dtenu.

Once the officer entrusted with the power reads the omens with due care, the court cannot re-read for its own satisfaction. But if the authority puts forward grounds so grotesque that he goofs the law, as it were, the Court will invalidate the order for the well-worn reason that no rational being would have formed the satisfaction which is a si11e qua non for the detention.

Supra-rational hunch or iO:frarntional instinct are not legal processes in this humdrum world and we have, as sentinels, the duty to scan the basis of the subjective satisfaction or the authority to check upon his minimal aspect of rational belief.

The grounds, as already set out, have to be considered to appraise the claim of rational belief as against the charge of a 'cyclostyled' satisfaction.

The crime of March 6, 197.3, committed past mid-night by the petitioner and his associates, is tell-tale in certain aspects. It relates to removal of paddy in gunny bags. The smugglers were arrested by the patrol party of Bagduar anti-smuggling camp. The culprits oould not produce any permi.t in support of their transport of the paddy.

We have no doubt that smugglers. disrupt supplies and services essential to the community and a smuggler of today who gets away with it is likely to be a smuggler of tomorrow, the habit of get ting rich quick dying hard. In this context, we have the counter-affichwit which runs thus :

"It appears from th~ report submitted by 1.0. of the case that the petitioner was ratimately connected with the incidents mentioned in the grounds of detention. I deny that . the grounds of detention are false and detention of the petitioner is illegal.

It further appears from the report of the said 1.0. that with reference to the first incident a Cr. Case bei'ag Banshihari P. case No. 6 dated 6.3.73 was instituted against the petitioner •and his associates under Section 7 ( 1) of the Essential Commoditi_es Act and Section 224/225 of J.P.C. but as due to dangerous and desperate nature of the detenu and his associates the witnesses declined to ive evidence against them in open court for fear of their lives and final report was submitted in the said case."

The inevitable inference from this statement, understood in the background of the 'grounds,' is that a criminal case had been instituted against the petitioner and his associates for offences of illeiial transport of paddy, for resistance to the police officers taking them into

cutodv and for escape from la1.Viul custodv.

Sections 224 and 225 I.P.C. clearly intlicate this development. What follows is significant. The Deputy Seqetary in the Home Department (who has sworn to the counter-affidavit), by a perusal of the papers, states on

omh that 'due to da,1gerous and desperate nature of te dete;1u and his associates' the witnesses declined to give .:videnc~ m ?Pe;1 cou.rt for fear of their lives and the final report 'Vas submitted m t,1e said case.

The price that subjective satisfaction, as valiating n order and excluding judicial scrutiny, has to pay in a court, 1s that if one of many gromds relied on by the authority goes, undeniably the whole order falls, even though if it were a case of objective satisfati?n the court _ might have attempted to sustain the order o.n the survvmg grounds.

It is argued that for this reason, the detent10n order m the present case must fail.

We have to be very C'areful where economic offenders inj1m~ the soft underside of the community's distribution a,1d consumption system in -r.espect ef essential cQnunodities.

Viewed with meticulous care, we see from the affidavit filed on behalf of the State that a criminal case had been actually instituted against the petitioner under s. 7 ( 1) of the Essential Commodities Act. This means that the charge-sheet disclosed sufficient evidence to go before a court and it was •,101: a case of absence of reasonable grounds of suspicion.

The possible argument that the affidavit had left vague the likelihood of a report under s. 169 Cr.P.C. based on no evidence is thus repelled. The order is not vulnerable on this score.

So far as the s1:cond episode is concemed, the attack made by counsel is that the counter-affidavit omits to mention anything about the criminal case that must have followed.

True, there should have been a btter aflldavit, but the absence of material to show that a case has been charge-sheeted in court is not destructive of the detention order provided there is some material for the subjective satisfaction of the authority concerned. In the present case, on the polic1~ report regarding the second incident, which is a serjous one, the authority might well have come to an inference of prejudicial activity.

We must express our surprise: at the silence i'.1 the counter-affidavit about the action taken in court having regard to the fact that the offence itself is one of transport by a 'caravan' of bullock carts. Even so, we are unabfo to void the order on this score, especially because the District Magistrate may well have acted on the police report.

Whether the investigation was conducted properly or not, whether the District Magistrate should have pinned his faith O'a the result of the investi gation and like questions, are not for the Court to consider. But the minimum which must be placed before the Court is that there 'was some evidence gathereld during investigation which, in some manner, roped in the petitioner. We are prepared to hold that there is some evidence for the District Magistrate to act and there we pause.

W c must fra,1kly admit tlrat the nature of the economic offence has had some impact on our mind in examining the order and the

suce material sedulously. The facts are peculiar and other facts might have led to an opposite inference.

The caution that absentminded orders of detention unwittingly suffer electrocution in court

should however 11ot be forgotten, notwithstanding the survival of the order in this case.

The country which faces food scarcity has resorted to arming the government and its officers with special powers under the MISA.

They are intended to be exercised whenever occasion arises, but exercised with care.

In the present case we have had to make up for deficiencies in the counter-affidavit by a closer exmnination of materials, for reasons already set out.

We should impress upon govermi1ent and its_ lesser officials, armed with extraordinary powers, to use them for the salutary purpose of C the protection of the community in its sensitive area of food and like essential articles. If there is failure in this •area, the officers must be taken to task, for the victim is the country and the community.

The release of a detenu because the order has been passed recklessly, is a matter which should be of concern to the State. If the detenu is a dangerous criminal who disrupts supplies and services essenfral to D . the life of the community, release of the man caused by absence of nexus for which the real though invisible responsibility falls on the officer, must be looked into at higher levels, so that the purposes of . the MISA are 1aot defeated by the neglect -of legality or indifference in_ operation from withi•.1.

Official vigilance is the price of soda! security and MISA is no talisman.

In the present case, for the special reasons E set out above, the order survives judicial scrutiny.

Shri Marwah openetl vigorously with the submission that the Presidential proclamation of emergency has outlived its reoality and must be annulled by this Court.

He marshalled what he variously called 'notorious' and 'historical' facts to establish that normalcy has prevailed in the l'a'ad for some time and the impenetrable secrecy of 'subjective satisfaction' no longer remained a sustainable proposition after Samsher Singh' s Case('). If the Emergency was extinguished judicially and retroactively, the Defence of India Act would have expired aq_d the maximum period of detention itself would have ended, resulting in a release of the petitioner. For lovers of civil liberties a penumbra of Emergency is anathema but the preliminary question in a Court is whether the basic facts and necessary parties are on record at all. Rhetorical assertions cannot be transformed into proof and absent affected parties, the Court's jurisdiction cannot be activated.

Further, adjpurnment for this purpose at this late stage.being impennissible. we have to negative the plea. Moreover, the reasons given by th!s Court in Bhut Nath's Case (2) hold good here too.

We reject the belated ------- ----

(1) AIR 1974 SC 2192;

(2) A.J.R. 1974 S.C. 806.

406 SUPREME COURT Rf!PQRTS

(1975] 3 S.C.R.

plea, hopeful that in the event of a future ruling of this Court prono1mcing ... the ·ate o.f emergency long ago legally dead the petitioner will have the benefit of it at the hands of the State.

Observing silence £or --....._ r the nonce on the merits of Shri Marwah's undccume•,1ted content:/on,

we reach th~ conclusion that the petition is liable to be dismissed. We however record appreciation of the painstaking services of Mr. Marwah with a sense of involvement in the case, though appearing as amicus curiae.

The petition is dismissed and the rule discharged.

Petition dismissed.

V.M.K.·