SADHU ROY

THE STATE OF WEST BENGAL January 22, 1975

[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]

Mai11tena11ce of Internal Security A.ct (26 of 1971) S. 3.-Preventive detention after discharge by Crlmi11al Court for offences which are grounds of detention-When valid.

The petitioner was detained under s. 3 of the Maintenance of Internal Security Act, 1971. The grounds of detention were that twice on the same day he and his associates, rmed with dangerous weapo!lq, committed thefts of overhead copper.wire, the first time in broad day light and then at about mid night. On

both oecasions they were challenged by public servants, memben of the para pol ice force, attached to the railway administration but the petitioner a:nd his assciCiates escaped after attacking the members of the Railway Police Force. The petitioner waa arrested in connection with the two incidents. His name was not m the F.I.R. ilut was gathered in the course of investigation. The police, howe1•er reported that the petitioner being a dangerous person. witnesses were afraid

to depose against him in open court and so he was discharged. He was, however, tai:en into custody the same day of discharge pursuant to the detention order.

Allowing the petitiort :hallenging the detention, - HELD : 1 (a) The discharge or acquittal by a criminal court is not necessarily a. bar to preventive detention on the same facts for 'security' purposes. But if such discharge or acquittal proceeds on the footing that the ch.arge is baseless or false, preventive detention on the same condemned facts may be vulnerable oo. the ground that the power of detention has been exercised in a ma/a fid~ or colourable manner.

(b) The executive authority may act on ubjective satisfaction and fa immunised from judicial dissection of the sufficiency of the material. But the executive conclusion regarding futuristic prejndicial activities of the detenu and its nexus with his past conduct though acceptable is not invulnerable.

(c) The satisfaction, though aUenuated by 'subjectivity' must be real and rational, must flow from an advertence to relevant factors, and not be a mockery or mechanical chant of statutorily sanctified phrases. The subjective satisfaction must be actual satisfaction.

(d) One test to check upon the colourable nature or mindless mood of the alleged satisfaction of the authority is to see if the articulated 'grounds' are too groundless to induce credence in any reasonable man or too frivolous to be brushed aside as fictitious by a responsible instrumentality.

( e) If witnesses are frightened off by a desperate criminal, the court may discharge for deficient evidence but on being convinced (on police or other materials coming withiQ his ken) that witnesses had been scared of test'fying, the District Magistrate may still invoke his preventive power to protect society.

(f) But if on a rational or fair consideration of the police version or probative circumstances he should have rejected it the routinisation of the satisfaction, couched in correct diction. cannot carry conviction about its reality and on. a

charge of mala fides or misuse of power being made, the court can examine the circumstances. [297 D-298 CJ

(2) Merely to allege that witnesses were panicked away from testifying to truth cannot be swallowed gullibly when the witnesses are members of the Railway Protection Force and the offences against public property were of grave character. [299 B-C]

( 3) In a case Like the present, where the circumstanCC6 of the nonprosecu tion strongly militate against the reality of the petitioner's involveme11t in the occurrence, the subjective satisfaction of the District Maistrate must be nPoleD1 to by him. While the detainer's on oath is not always insISted on as the price for sustaining thi: order, subjective atifaclion, being a mental fact or sta1e is best established by 1he author's affidavit and not that of a stranger in the s1cretariat familiar with the papers. But in the present case, the District Magistrate's affidavit is not available and the reason given for his not filing his affidavit is not convincing. If the Di~; trict Magistrate had sworn an affidavit that the identity of the petitioner as participant in the two incidents was not lnown to the Railway Protection Force and that other villagers made them out as the gang was decamping with the booty, th1: detention might have been upheld. But there is no such averment and the bare ipse dixit of the Deputy Secretary in the Homci Department that witnesses were afraid to depose is too implausible and tenuous to be acceptable rn:n for subjective satisfaction. [298 B-F; 299 A-B, C..EJ

[Where a grievous crime against the community has been committed the culprit must be subjected to condign punishment so that the penal law may strike a stern blow where it should. Detention is a softer treatment. Further, if the man is innocent, the proces5 of the law should give him a fair chance and that should not be scuttle,<! by indiscriminate reS().rt to easy but unreal orders of detention unbound by precise tim1:.]. [300 C-E)

Sri/al Shaw v. The State of West Bengal Writ Petiiion No. 453 of 1974. dtci .. deli on 4-12-74 and Jaganath's case [1966) '.l S.C.R. 134 and 138, followed.

Rameshwar Shaw [1964) 4 S.C.R. 921 926. Hodrchand'! case A.l.R. i974 S.C. 2120; Go/am Hussain v. Commi!siOni'r of Police (1974) 4 S.C.C. '30, '34 and Dula/ Roy v. The District MagiJtrate, Burdwan [1975) 3 S.C.R. 186 referred to.

ORIG<NAL JURISDICTION: Writ Petition No. 429 of 1974. Uuder E Art. 32 of the Constitution of India.

Shiv Pujan Singh, for the petitioner.

G. S. Chatterjee, for the respondent.

1he Judgment of the Court was delivered by

KRISHNA IYER, J.-Shri S. P. Singh, appearing as amicus curia£, has urged a few points in support of his submission that the ~:titioner detenu, very poor and not fallen into criminal company, is entitled to be ret free, the order being illegal.

The obnoxious acts, with futuristic import, relating to the deten- G tion, have been set out in the grounds annexed to the order and are repeated in the affidavit of the Deputy Secretary, Home (Special) Department, Government of West Bengal, based on the records available in the Secretariat. The District Magistrate of Purulia., nearly three long years ago, passed the order of detention against the petitioner on February 2, 1972 on receipt of materhl.ls regardiilg the prejudicial activities of the detenu and on being subjectively satisfied of H the need for the detention under s. 3 of the Maintenance of Internal Security Act, 1971 (Act XXVI of 1971) (hereinafter called the MISA, for short).

SADHU ROY v. WEST BENGAL (Krishna Iyer, /.) . 2 93

The two criminal adventures of the petitioner which persuaded the District Magistrate to prognosticate about his prejudicial activities were allegedly indulged in on September 3, 197L The grounds of detention are that on that date, in two separate dramatic sallies, the detenu and his associates went armed with hacksaws, lathis etc., and what not, committed theft of overhead copper catenary wires and certain other items from a place between Anaka and Bagalia railway stations. On tbe first occasion, which was during broad daylight, the miscreants were challenged 'by the R. S. Mem!>ers' but were scared away by the petitioner and his gang repeated the theft of traction wire etc.,' at stone throw. On the second occasion, which was at about mid-night, about the same spot. 'When resisted by the duty RPF Rakshaks with the help of villagers', ballasts were pelted at them by the violent intruders who made good their escape with the gains of robbery. Based on these two frightful episodes, the detaining authority came to the requisite conclusion about danger to the community, which is recited in the order.

The question . is whether, in the facts and circumstances of the case, the order can be impugned as colourable or callous exercise of power based on illusory or extraneous circumstances and therefore void. An examination of the surrowiding set of facts, serving as backdrop or basis, becomes necessary to appreciate the argument that the subjeative satisfaction of the authority did not stem from any reQ/ application of his mind but as a ritualistic recital in a routine manner.

It is admitted in paragraph 6 of the counter affidavit that the two incidents were investigated ; is GRPS Case No. 1 and No .2. The petitioner was arrested in connection with the said cases on September 9, 1971 and the police submitted a final report in both the cases on January 6, 1972 and February 9, 1972 respectively, 'not because there was no evidence against the petitioner but because the detenu-petitioncr being a dangerous person, witnesses were afraid to depose against him in open Court'. It may be mentioned here that the petitioner's name was not in the FIR but is alleged to have been gathered fa, the course of the investigation.

However, .he was discharged from the two cases on February 9, 1972 but was taken into custody the same day pursuant to the detention order.

Thereafter the prescribed formalities were followed and there is .no quarrel about noncompliance in this statutory sequence.

The crucial submission that deserves close study turns on the colourable nature or mindless manner of the impugned order.

What arc the facts germane to this issue '? It is seen that the petitioer's name is not in the first information statements. Had a court occasion to adjudge the guilt of an accused person charged with serious crime committed in the presence of quasi-police officers and his name is not seen in the earliest report to the police, that would have 1eceived adverse notice unless explained.

Likewise, the circumstance that the final police report to the Court terminated the. criminal pr0eeedings

may, unless other reasons are given, militate against the implication of the petitioner since s. 169 Cr.P.C. refers to two situations one of which at least nullifies possible inference of incrimination i.e., that

there is no 'reasonable ground of suspicion to justify the forwarding of the accused to a magistrate'. It behoves the detaining authority to tell this Court how he reached his mental result in the face of a 'release report' by the police. For, the legal label th'lt the satisfaction of the executive authority a bout potential prejudicial activity is 'subjective' does not mean that it can be irrational to the point of unreality. Subjective satisfaction is actual satisfaction, nevertheless.

The objective standards which courts apply may not be applied, the subject being more sensitive; but a sham satisfaction is no satisfaction and will fail in court when challenged under Art. 32 of the Constitution. If material factors are slurred over, the formula of 'subjective satisfaction' cannot salvage the deprivatory order. Statutory immunology hardly saves such invalidity. After all, the jurisprudence of detention without trial is not the vanishing point of judicial review.

The area and depth ot lhc probe, of course, is conditioned by the particular law, its purpose and language.

But 01.!r freedoms are not wholly free unless the judiciary have a minimal look at their executive deprivation, even though under exceptional situations.

We may here refer to what a bench of five Judges of this Court observed in the vintage: ruling Ramesh war Shaw( 1) :

"It is however neessary to emphasise in this connection that though the satisfaction of the detaining authority contemplated by s. 3 (1 )(a) is the subjective satsfaction of the said authority, cases may arise where the d.etenu may challenge the validity of his detention on the grolmd of malafides and in support of the said plea urge that along with other which show, malafides, tli.e Court my als~ consider his grievance that cie grounds served on him cannot possibly or rationally support the conclusion drawn against him by the detaining authority. It is only in this incidental manner and in support o~ the plea of malafides that this question can become justiciable; otherwise the reaonableness or propriety of the said satisfaction contemplated by s. 3(1) (a) cannot be questioned before the Courts."

Back to the: facts.

Of course, the mere circumstance that the na1i11e of the petitioner was gathered in the course of the invsetigal!ion is neither here nor there and cannot help him in the tall contention that for that reason the order of detention is a make-believe. The conspectus of circumstances placed before the authority and his rational response, having regard to the duty to immobilise dangerous delinqueuts from molesting the community-these arc pertinent factors to decode the responsible r.eality of the satisfaction, although not 1•he

plnary rightness of the detention order.

There are a fe~ vital facts which loom large in this context. One

1s that th:~ court discharged the accused, the reason alleged in the counter being that -- ---·--·-··---

[1964J 4 S.C.R. 921, 9'26.

SADHU ROY v. WEST BENGAL (Krishna Iyer, J.) 295'

"The police submitted final report in those cases on 6-1-72_ and 9-2-72 respectively not because there was no facts which show malafides, the Court may also. consider his evidence against the petitioner but because the detenu petitioner being a dangerous person witnesses were afraid to depose against him in open court." What is the impact of a discharge of the accused by the criminal court based on police reports on the validity of the detention order against the same person based on the same c iarge in the context of a contention of a non-application of the authority's mind ? . The two jurisdictions are different, the two jurisprudential prindples diverge, the objects of enquiry and nature of mental search and satisfaction in the . two processes vary.

The argument that detention without trial, for C long spells as in this instance, is undemocratic has its limitations in modem times when criminal individuals hold the community to ransom, although vigilant check of executive abuse becomes a paramount judicial necessity.

We, as judges and citizens, must remember that, in law as in life, the dogmas of the quiet past are not adequate to the demands of the stormy present and the philosophy and strategy of

D preventive detention has come to stay. We may merely observe that we are not legaliy impressed with counsel's persistent point that solely or mainly because the petitioner has been discharged in the two criminal cases he is entitled to be enlarged from preventive captivity.

Even so, it does not follow that the extreme view propounded by the counsel for the State that the termination of the proceeding.s in a criminal case on identical facts is of no consequence is sound.

In this E . connection, we may draw attention to a few decisions of this Court cited at the bar. Chandrachud J., speaking for thei Court, recently observed in; Sri/al Shaw v. The State of West Bengal('), dealing with a situation somewhat like the one in this case, thus:

"This strikes us as a typical case in which for no appa- 1 rent reason a person who could easily be prosecuted under the punitive laws is being preventively detained. The Rail- F way Property (Unlawful Possessio11) Act, 29 of 1966, confers extensive P<>Wers to bring to, book persons who are found in unlawful possession of railway property. The first offence is punishable with :l sentence of five years and in the absence of special and adequate reasons to be mentioned in the judgment the imprisonment shall not be less than one year. When a person is arrested for an offence punishable G under that Act, officers of the Railway Protection Force have the power to investigate into the alleged offence and the statements recorded by them during the course of investigation do not attract the provisions of section 162, Criminal Procedure Code. (See Criminal Appeal No. 156 of 1972 decided on 23-8-1974). If the facts stated in the ground are true, this was an easy case to take to a success- H ful termination. We find it impossible ot accept that the prosecution could not be proceeded with as the witnesses

(1) Writ Petition No, 453of1974, decided on 4-12-74,

were afraid to depos~ in the public against the petition<:r.

The Sub-inspector of Police who made the Panchnama, Wt! hope, could certainly not be afraid of giving evidence against the pemioner. He had made the Panchnama of seizure openly and to the knowledge of the petitioner. Besides, if the petitioner's statement was recorded during the course of investigation under the Act of 1966, that itself could be relied upon by the prosecution in order to establish the charge that the petitioner was in unlawful possession of Railway prope1ty." (emphasis ours)

Again, in Noorchand:S case(~) Gupta J., delivering judgment for the 'Court, held:

"We do not think it can be said that the fact that the petitioner was discharged from the criminal cases is entirely irrelevant and of no significance; it is a circumstance whkh

the detaining authority cannot altogether disregard. In the case of Bhut Nath Mate v. State of West Bengal (AIR 1974 SC 806) this Court observed:

" ... detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code. The immune expedient of throwing into a prison ctill one whom the ordinary law would take care of, merely because it' is irksome to undertake the inconvenience of proving guilt -in court is unfair abuse." -

If as the petitioner ha~ asserted, he was df schargecj be- . cause there was no material against him and not because

witnesses were afraid to give evidence against him, there would be apparently no rational basis for the subjective satisfaction of the detaining authority. It is for the detaining authority to say that in spite of the discharge he was satisfied, on some valid material, about the petitioner's complicity in the criminal acts which constitute the basis of the detention order. But, as stated already, the District Magistrate Maida, who passed the order in this case, has not affirmed the affidavit that has been filed on behalf of the State."

There was reference at the bar to the ruling reported as Galam Hussain v. Commissioner of Police(2) where the Court clarified that there was no bar to a ddention order being made after the order of di!- charge by the criminal court, but emphasized the need to scan the order to prevent executive abuse in the following words :

"Of course, we can visualise extreme cases where a Court has held a criminal case to be false and a detaining authority with that. judicial pronouncement before him may not reasonably claim to be satisfied about prospective prejudicial activities based on what a Court has found to be baseless."

(1) A.I.R. 1974 S.C. 2120.

(2) (1974 4[ s.c.c. 530.

SADHU ROY v. WEST llENGAL (Krishna Iyer,!.) 297

A Maybe, we may as well refer to the vintage ruling in Jagannath's care( 1) where Wanchoo J., (as he thn was} spoko for a unanimous Court:

"Furthel' the proceedings ip. the matter of detention and the order of detention should show that it had acted with aU

due care and caution and with the sense of responsibility necessary when a citiztn is deprived his liberty without trial.

We have therefore to see whether in the present case the authority concerned has acted in this manner or not. If it has not so acted and if it appears that it did not. apply its mind properly before making the order of detention the order in question would not be an order under the Rules and the person detained would he entitled to release."

The precedential backdrop help crystallize the jurisprudence of

pr<:vcn:iv~ detention, an odd but inevitable juridicai phenomenon, in a succinct manner and to the extent relevant to the case. Although the circumstances of each case will ultimately demarcate the callomi or colourable exercise of pow-r from the activist or alert application of the executive's mind in making the impugned order, some clear guidelines, though overlapping, help application of the law:

( 1) The discharge or acqJ!ittal by a criminal court is not necessarily a bar to preventive detention on the same facts for 'security' purposes. But if such discharge or acquittal procec; ds on the footing that the charge is false or baseless, preventive detention on the same condemned facts may be vulnerable on the ground that the power under the MJSA has been exercised in a malafide ot colourable manner.

(2) The executive authority may act on subjective satisfaction and is immunised from judicial dissection of the sufficiency 0f the material.

(3) The satisfaction, though attenuated by 'subjectivity' must be real and rational, not random divination, must flow from an advertence to relevant factors, not be a mock recital or mechanical chant of statutorily sanctified phrases.

( 4) The executive conclusion regarding futuristic prejudicial activities of the detem; and its nexus with his pas_t conduct is acceptable but not invulnerable.

The court can lift the verbal veil to discover the true face.

(5) One test to check upon the colourable nature or mindless mood of the alleged satisfaction of the authority is to see if the articulate 'grounds' are too groundless to induce credence in any reasonable man or to frivolous to be brushed aside as fictitious by a

-(il--!1966]-3-s.c.R:~134. 138.

responsible instrumentality.

The court must sf:e through mere sleights of mind played by the detaining authority.

(6) More concretaly, if witnesses are frighteHed off by a desperatie criminal, the court may discharge for delicient evi:dence but on being convinced (on police or other materials coming within his ken) that witnesses had been scared of testifying, the District Magistrate may still invoke his preventive power to proteit society.

(7) But i:f 011 a rational or fair consideration of the poli<c

vcrinn or probative circumstances he would or should necessarily have rejected it, the routinisatic1n of the sati:; factipn, couched in correct diction, cannot carry conviction about its reality or fidelity, as

agniust factitious terminological conformity.

And no a charge of malafides or misuse of lower being made, the court can go behind the faca e and reac:h at the factum.

So viewed, how does the petitioner's case stand?

The petitioner's identity and involvement must, in some manner, b:: brought home, sufficient for the subjective satisfaction of a icsponsible officer not merely for his hunch or intuition. Let us assume in favour of the officer that such material was present before him when he passed the order of detention. This should be revealed to the court hearing the habea~ corpus motion, in a pre.per return in the shape of an affidavit While we agree that the detainer's own oath is not always insisted on as the price for sustaining the order, subjective satisfaction, being a mental fact or state is best established by the author's affidavit, not a .; tranger in the Secretariat familiar with papers, but the mind of the man who realised the imperativeness of the detention. This is not a formality when the ubject-matter is personal liberty and the more 'subjective' the executive's operarion th1~ more sensitive is procedural insistence.

Here the Dist:iict Magistrate's affidavit is 1mavailable.

Another obstacle in the way of the State, which has to be surmounted, consists in the circumstances that both the criminal occurrences took place in the presence of public servants, members of the para-police forces attached to the railway administration. Indeed, the case is that some o:f these officials were terrroized and OV(:r-awed before the stolen articles were removed. Naturally, one would expect

a serious crime like railway property being removed by show of violence bei, ng. the suject-matter of the prosecution. In the present case, the Distnct MagJstrate does not swear an affidavit himsdf and what i& seated is that he is now posted in Sik\:im :md is not 'presently available for affirming .the affidavit'. In a case where a personal explanation i~ necessary, S!kkim is .not too distant and so we have to see whether the District Magistrate has, in the i!lstant case, to show why,

SADHU ROY \I, WEST BENGAL (Krishnw Iyer,!.) 299

when the cases were discharged by the trying magistrate, he thought

there was enough material for preventive detention. True, the Home Department official, informed by the records, has sworn that the police report for non-prosecution was 'not because there was no offence against the petitioner but because the detenu petitioner being a dangerous person witnesses were afraid to depose .against him in open cuort'. Maybe this is true, but the subjective satisfaction of the District Magistrate must be spoken to by him, particularly in a situa- . tion where the circumstances of the non-prosecution strongly militate against the reality of the petitioner's involvement in the occurrence.

After aJJ, merely to allege that witnesses were panicked away from testifying to truth cannot be swallowed gullibly when the witnesses themselves arc members ot a railway protection force and the offences against public f:ropcrty are of a grave character. The observations of Chandrachud . in Sri/al Shaw, quoted earlier, are in point. .

.In the case of non-officials, maybe they are afraid to give evidence against dangerous characters fo~ fear of their life but such an excuse or alibi is ordinarily unavailable where the witnesses are para-police public se.rvants. If the District Magistrate had sworn an affidavit that the identity of the petitioner, as participant in the crime, was not known . to the railway protection force and that other villagers made thl.!m out as th.e gang was decamping with the booty, something may be said for th.I.! plea. There is no such averment in the counter-affidavit ar.d thei bare ipse dixit of the Deputy Secretary in the Home Department that witnesses were afraid to depose is too implausible and tenuous to be acceptable even for subjective satisfaction. After all, freedom is not bubble to be blown away by executive whif or whim. For, as pointed out by Gajendragadkar J. (as he then was) in Rameshwar Shaw (supra) at p. 930:

"At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the, authority is dealing with a person already in detention."

Had the statement been of the detaining authority, bad the deponent furnished some fact which would or c::>uld make any reasonable ma.'1 believe that the witnesses were likely to shy away from the court for fear of the petitioner, had the affidavit thrown some light on the dark hint behind the non-prosecution in court due to non-disclosure of evidence or to indicate that the final report of investigation was not on account of the absence of any reasonble suspicion but because of the deficiency of evidence (s. 169 Cr.P.C. contemplates both types of situations and the copy of the report was easy to produce), we might have upheld the detention. In Du/al Roy v. The District Maistrate Burdwan(I) this question has been dealt with in some detail. The flaw in the order flows from non-explanation of how the District Magistrate

hru; made his infe.rence in the circumstances indicated.

(I) [1975] 3 S.C .R. 186.

SUPREME CO!JRT REPORTS {1975] 3 s.c.R.

Without more, we are inclined to the view that the Qbservations of A Wao.choo J. (as he than was) in Jagannath (supra), at p. 138, appli1::s:

"This casualness also shows that lite mind of the authority concerned was really not applied to the question of detention of the peti.tioner in the present case. In this view of the matter we are of opinion tha.t the petitioner is entitled to release as the order by which he was detained is no order B under the Rules for it was passed without the application of the mind of the authority concerned."

In the present 1:ase, on account_of the special reasons set out abC1ve, we are far from satisfied that the detention order is not a cloak to avoid the irksome procedure of a trial in Court.

There are two social implications of dropping prosecutions and resorting to substitutive detentions which .deserve to be remembered.

Where a grievous crimt~ against the community has been committed, the culprit must be subjected to condign punishment so that the penal law may strike a stern blow where it should. Detention is a saf.ter treatment than stringent sentenee and there is no reason why a dangercriminal should get away with it by enjoying an unfree but unpaid holiday.

Secondly, if the man is innocent, the process of :he law should give him. a fa:lr cham;:e and that should not be scuttled by indiscriminate resort to easy but unreal orders of detention unbound by precise tim~. That is a negation of the correctional humanism of our system and bre, eds bitterness, alienation and hostility within the cage.

We accordingly allow me writ petition, make the rule absolute and direct tLat the petitioner set free.

V.P.S.

Petition aliowed.