GOPAL BAURI v.

THE DISTRICT MAGISTRATE BURDWAN AND OTHERS

January 17, 1975 B [V. R. KRISHNA IYl!R, P. K. GOSWAMI AND R. R. SARKARIA, JI.]

Me1/111e1u111ce of /11/trnal Security Act, (26 of 1971), Stctlon 3(2) read with s11bscctlo11 ( 1 )-Recovery of tlie stolen articles from one of thr dettnu's as.vo. elates weiglllng wi1/I District Magistrau i11 making the impugned order-Omi~.1/011 to disclose t/1e name of associate 111 the grounds1 whether amo1mts de11la'/ of opportunity to the petitioner to represent agal11s1 111e order of detention.

The petitioner was arrested on March 26, 1973, in connection with two inci dents of theft said to have been committed by him on 20th and 21st March, 1973.

He was released by the Court on bail on the same day. The police, however, in due course submitted the final report and the accused was.discharged on July 22, 1974.

But .the respondent made the impugned order of detention on June 25, 1973 under sub-section (1) read with sub-section (2) of section 3 of the Main tcnance of Internal Security Act, 1971. The order was made in order to prevent the petitioner from 11cting in a manner prejudicial to the maintenance of su]iplies and services essential to the community. The petitioner was detained in pursuance of that order on July 13, 1973. The grounds which have been furnished to the detenu describe the occurrence of two successive days, namely 20th and 21st March, 1973. In the counter-affidavit submitted by the respondent it Is stated thaf both the acts stated in the grounds of detention were committed by the de tenu along with his associates in quick succession In the course of these successive days. . Allowing the petition under Article 32 challenging the order of detention,

HELD : The '\three" successive incidents may include reference to the recovery of some stolen ball bearings from the possession of "one of your associates on 23-3-1973". Even so, it was absolutely necessary to communicate to the detenu the name ctf the particular associate from whose possession the recovery of the stolen articles, the subi.ect matter of the thefts disclosed in the two grounds, was made. Since the sin of the recovery from "one of your associates" visits the detenu against whom a prejudicial inference has been made by the detaining authority resulting in his subjective satisfaction in making the impugned order, omission to disclose the name of the associate in the grounds amounts to denial of an effective opportunity to the petitioner to represent against the order. [l99BE)

In this case either the District Magistrate did not know .the name of the associate for which alone it was not possible for him to. disclose it to the detenu or knowing the same he. has refrained from furnishing it to tht: detenu. In the first case bis subjective satisfaction was influenced by an unreal and non-existent material circumstance, the Diatrict Magistrate not having considered whether the associate could be in fact an associate of the detenu. In the second case a reason able opportunity has not been given to the detenu to know a very relevant and material particular in the grounds to afford making an effective representation against the order. In either case the order will be reckoned as invalid under the law. [199H]

ORIGINAL JURISDICTION: Writ Petition No. 406 of 1974.

(Under Article 32 of the Constitution).

H M. Qamaruddin, A.C., for the Petitioner.

Prodvot Kumar Chakravarti, and G. S. Chatterjee of Sukumar Basu & .Co. for the respondents.

SUPREME COURT REPORTS [1975j 3 s.c, R.

The Judgment of the Court was delivered by

GosWAMI, J.-This application for a writ of habeas corpus under Article 32 of the Constitution arises out of an order of detention Jitadc on June 25, 1973, by the District Magistrate Burdwan under subsection {1) read with sub-section (2) of section 3 of the Maintenance of Internal Se<:urity Act, 1971. The order was made in order to prevent the petitioner from acting in a manner prejudicial to the maintenance of supplies and service~ essential to the community. The groumts on which the said order is based are as follows :-

" (1) On 20-3-73 night at about 01.00 hrs. you with your other associates committed theft of ball bearings and wheels of w~ bucket carriage& of the rope-way lines

mar Harishpur village and the supply of sand to the collieries was suspended. By such act you adversely affected the raising of supply of coal from the collieriies which is essential for human consumption and for the maintenance of supplies and services essential to the community.

(2) On 21-3-73 at about 03.00 hrs. you with your other

a11sociates committed theft of ball bearings and wheels: of the bucket carriages from the rope-way lines at Palashbon village causing sension of supply of sand to the collieries. Some stolen ball bearings were recoveredfrom the possession of one of youir

associates on 23-3-73. The resultant effect was that coal which is essential commotlities cannot be processed out of the mines for human and other consumption and for the maintenance of supplies and services essential to the community." The petitioner was arrested by the police in connection with the aforesaid two incidents on March 26, 1973 and was released by the court on bail on the same day. The police, however, in due coum~ submitted the fi11al report on November 25, 1973 and the accused was discharged 011 July 22, 1974.

As seen earlier the impugned oraer of detention was made. on June 25, 1973 and the petitioner was detained in pursuance of that order on July 13, 1973. It is submitted by Mr. Quamruddin, foarne~ counsel appearing as amicus curiae that based on the grounds as given, there is an inortlinate delay in making the detention order. Se1ondly

he submits that the grounds are vague inasmuch as there is no mention of the number of ball bearings nor of the number of associates in the grounds. We are not impressed by these submissions in this case.

We. however, find from paragraph 5 of the counter-affidav'it submitted by the Deputy Secretary, Ministry of Commerce, Government of India, who was the District Magistrate of Burdwan at the relevant time the foUowing statement:-: "I further say that having regard to the nature of the act~ committed by the detenu (as disclosed in the grounds fu:r-

GOPAL BAUR! v. DIST. MAGISTRATE (Goswami, J.) 199

nish4{ to the detenu), I was bona fide satisfied that the said acts were sufficient for making the detention ord.er. Both the acts stated in the grounds of detention were committd

by the etenu along with his associates in quick succession in course of three successive days ... "

The grounds which have been furnished to the detenu describe the occurrence of two successive days, namely, 20th and 21st March, 1973 Even giving some allowance to the affidavit of the District Magistrate it may be t.hat the "three" successive incidents may include reference to the recovery of some stolen ball bearings from the possession of "one of your associates on 23-3-73'' mentioned in the second ground.

Even so, it was absolutely necesary to communicate to the detenu the name of the particular associate from whose possession the recovery of the stolen articles, the subject matter of the thefts disclosed in the two grounds, was made. Since it is clear. from the District Magistrate' s affidavit that the recovery of the stolen articles from one of the detenu's associates weighed with him in making the impugn~ order, the petitioner should have been apprised of that material fact in a specific manner the least of which was to furnish the name of the associate. It may be that omission to give names of indeterminate associates who run away after committing illegal acts at dead of night may not be of consequence but here the name of the associate from whom the stolen baU_l:>earings were recovered was a definite fact known to the authority in oi:der to connect the detenu with the particular thefts. Since the sin of the recovery from "one of your associates" visits the dctenu against whom a prejuijicial inference has been made by the detaining authority resulting in his subjective satisfaction in making the impugned order, omission to disclose the name of the associate in the grounds amounts to denial of an effective opportunity to the petitioner to represent against the order. For this infirmity in the grounds the petitioner is de.nied the constitutional protection under article 22 ( 5) of the Constitution.

F It is submitteti on behalf of theJesponderrts that even a, disclosure .of the name of the associate woul have evoked the same plea of denial by the detenu and, therefore,- would be inconsequential. We are unable to accept such a submission. In case of preventive detention the duty to furnish the relevant material particulars in the grounds which reasonably influence the subjective satisfaction in making the

order of detention is not to be judged by what the answer the deu:nu

will make but whether the detenu will be able to make an effective representation against the order. The possibility or probability of detenu's ultimate denial of the allegations is not relevant in that context.

In this case either the District Magistrate did not know the name of the associate for which alone 1t was not possible for him to disclose it to the detenu or knowing the same he has refrained from furnishing it to the detenu.

In the first case his subjective satisfaction was influenced by an unreal and non-existent material circumstances, the District Magistrate not having considered whether the associate could / (

200 SUUBMB C01JllT llBPORTS [1975) 3 s.c.R.

bo in fact at11 associate of the detenu. In the second case a reasonable A opportunity has not been given to the deteo.u to know a very ri'levant and material particular in the grounds to afford making an e!l!ective representation aaainst the order.

In either case the order will be reckoned as invalid under the law.

In the result the impuaned order is invalid and the same is 8 quashed. 1'he rule nisi is made absolute and the petitioner s:llall be released from detention forthwith. . . ·

V.M.K.

Petition allowed.