A. K. Roy v. State (Mitter, J.)

**ARUN** **KUMAR** **ROY** _alias_ **KATU** _v._ **THE** **STATE OF** **WEST** **BENGAL** _May_ 3, 1972 IP. J:AGANMOHAN REDDY, K. K. MATHEW AND G. K. MITTER, **JJ.]** _Maintenance_ _of_ _nternal_ _Security_ _Act_ 26 _of_ _1971-Detention_ _.llnder-Whether justified when grounds disclosed only facts amounting_ _to_ _theft which could_ _be_ _proceeded with under_ _ordinary_ _law-Delay_ _In_ _**.consideration**_ _**of,**_ _**de,enu's**_ _**repre!l'entation**_ _**by**_ _**State Governmenl**_ _**'Whether**_ _renders detention_ _i/le2al._ T"- petitioner was detaill<!d in pursuance of an order under the Maintenance of Internal Security Act 26 of 197 L The order of detention was passed by the District Magistrate on August 24, 1971. The order was approved by the Stat~ Government under s. 3 ( 3) of the Act OR Septembor 4, 1971. TI1e petitioner who was aboconding after the making of the detention order was arrested on September 9, 1971. .Soon aft,er he was served with grounds of detention. On ·October 7, 1971 a rep1..,sentation made by the petillOner was received in the offices of the State Government. The represehtation was rejected by the State Government on Noveml>or 17, 1971. On the sam<> date the Advisory :Board before which the representation had been placed by the State Government under s. l 0 of 11>> Act reported that there was sufficient .cause for the petitioner's detention. On November. 26, J 971 the State **Gove1rnment** **confirmed** **the** **order** **of** **detention** **in** **exercise** **of** **its** **·powers** under s. 12( J) of the Act. In a petition under Art. 32 of the Coastitution the petitioner .urged that (i) the theft of overhead copp>r-wire by him mentioned in the grounds of detention was an offence unc!.er 1he Indian Per.al Code which ·could tc tried under the ordinary law; (ii) there was undue delay in the consid.oration of his rei>resen•ation by the State Government which rejected it only on Nm•,mber I/, _1911_ after having received it on October 7, 1971. **Dismissing** **the** **petition,** **B** c **D** E HELD: (i) Undoubtedly the State Government could if it had .chosen, have proceeded to put the ordinary criminal law in motion. **F** But conditions in West Bengal were far from normal when the acl, imputed to the p~titioner were committed. WagonJbreaking and removal of overhead traction wire posed a major problem to the mainte· nance of supplies and 'ervices essential to the community. If therefore the · authorities concerned felt that tre trial of· such cases under the ordinary law of the land would not meet the requirements of the situa**tion** **and** **particularly** **in** **the case** **of** **activities ·of the** ~ind **mentione<.** **[1]** **•** **in** **G** ~ grounds .which we.re committed in the midd'ic of the nigh~ when there could be few eye witnesses and even those who viewed such incidents would be apprehensive of their own safuiy _'it_ they were asked to give evidence against such . dangerous persons who went about arming themselves with ··swohfs and daggers not only to prevent tt.cir apprehension but also to terrorise persons who might feel inclined to put up any obsttuction, the State would not be unju:tified in proceeding in the way it did. [555 G-556 Bl **H** No doubt the removal of overhead traction wire would .be a case of theft but that is not to say that such removal would not al•o be A. K. ROY _v._ STATE _(Mitter,_ **J.)** 553 prejudicial to the maintenance of supplies and services essential to tho community, specially whert indulged in on a large scale. [556 CJ **8** **D** (ii) The allel!Od delay in t~.e consic'.•:ration of the petition,r"s re**presentation** **by** **the State** **Government** **did not** **render** **the** **detentio.** iliegal under the provisions of _L:_ Act or of the Con .. titution. The **Act docs not** **make** **it** **o1:J:gatory** **0;1** **the** **State** **Government itself** **to** consider the representation of the detenu but makes it obligatory on tlr. part of the State Government l.l place the case before the Advisory Board along with tb: repr.,.entation if any made by the person affected by the o'rder. Although s. 15 of the Act gives the appropriate government power to release a detenu for a temporary period with or with**out conditions, the Act does not** **empo\\r.!r** **the Government to** **reli!ac** « detenu finally except after the report of the Advisory Board. (560 H-561 DJ Further, the detenu made no g'rievance in his writ petifon about th!! delay in the consideration of his. representation. If any such plea had been taken the Court would have had to consider whether Govern ment had any explanation to offer ~or the delay. Jn this case the Gc"vrnment had approved of tb: order of detention as earlv as September 4, 1971 and submitted the report to the Central Government. **There was nothing in the representation** **of** **tb.:** **petitioner apart from** **the:** **bare denlal** **of** **his commissioq** **of** **any** **offence** **\Vhich** **ncccssitateJ** **lh..!** **immediate con"ideration** **•Of** **his** **rcpP:sentation.** **As the Act** **-did** **not** empower the Government to release the detenu on the strength of the repi"esi~ntation without sending the matter to the Advisory Board. the **Government's .consideration** **of** **the** **r-epresenfrati.on,** **after its prior ap-** **proval** **of** **tli.e** **detention order** **wou1d** **have** **liltle** **significance or import.** (561 E-FI _K._ _I. Singh_ v. _Sta/,_ _of_ _Manipur._ A.LR. 1972 S.C. 438. distin**E** guished. **G** **H** ORIGINAL JURISDICTION : Writ Petition No. 52 of 1972. Under Article 32 of the Constitution of India for a writ in the nature of _habeas corpus._ _Shiva_ _Puja1'_ _Singh,_ for the petitioner. S. _N._ Mukherjee~ for the respondent. The Judgment of the Court was delivered by **Mitrer,** **J.** The petitioner who was detained in pursuance of an order under the Maintenance of Internal Security Act, 1971 ( 26 of 1971) hereinatfer referred to as the 'Act') has present~d this petition under Art. 32 of the Constitution. He states therein that the detention order originating from the District Magistrate of Howrah is bascles~. _ma/a_ _fide_ and motivated, that he was never involved in any kind of violent or anti-social activities, that he is a first fireman of the South Eastern Railway and by his detention irreparable prejudice will be· caused to hi~elf and members of hi1 family, He states further that he had gpne to the Advisory Board on November 17, 1971 and that his detention was con.firmed and communicated to him on December 8, 1971. His grievance is # 554 SUPRBME COURT ~~PORTS· [-] [1973] 1 s.c.R. ###### "'' that no first information was lodged against him as was ~cessary. ##### • in the circumstances of the case and his detention is not warranted by law. From the affidavit affi~ed by the_ District Magistrate of Howrah in opposition to the petition the following facts emerge : ( I ) The order was made against the petitioner on 24th August l 971 in exercise of the Magistrate's power conferred by sub-s. ( 1) read with sub-s. (2) of s. 3 of the Act with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of supplies and services essential to the community. ( 2) The grounds for the order of detention bearing the same date show that on 23rd May 1971 at about 2.15 a.m. the petitioner along with some associates armed with swords, daggers etc. had cut down and stolen qway 40 meters of copper contact wire from the over head traction wires from K. M. Post No. 9/31x to 10/lx in the Up line in between Hourigra.m and Andual railway stati.on,s causing disruption 'in train servic_es on tl:ie Howrah Khargapur sectiQn an.i;I that he bitd, a_<;~ in a si:milaF manner i11 company with some associates being similarly armed on the night of _1th_ ·Jun;; 1971 at about 2 a.m. and had cut down copper contact wire from KM. Post Nos. 9 /25 and 9 /27 on the Up Linc in l;etween Santra gachi and Mourigr'!m railw.ay stations. on the Howrah Khrgapur section and his acts were considered prejudicial to the maint11riall\;,t; of supplies and :.ervices essential to the community. ( 3) On August 24, 1971 the District Magistrate had reported _tq_ the Sta,te U1m1~i:11t <!bout t:he passing. of th~ detentifflt order together with the grounds of detention and all other particulars bearing on the same. The sai4 report aQd partic\llars. wer-e considered by the State Government and on September 4, 1971 the detention order was approvep by the State Go11erl)ffillllt under sub-s. (3) of s. 3 of the Act. ( 4) Soon after the passing of the orde_r of <le.tentjon. th!} petitioner :was_ found to be. absconding and coulc,t be arr~Sted billy on 9th September 1971 when he was served with the. otdet of d~t\Xl­ tion and the grounds thereof. He_ was ijsq infqrmed tjiat h~ c®ld make a representation to tne siate Government_ against hi-. detention order and that' his case wql!id' be- placi;d befon; - tl~ Advisory Board within 30 days from the ctate-of'it1" detention order. ( 5) On, September 4, 1971 the State Goverb.inent submitted a report to the -Central Government in accordance with the provisions contained in sub-section ( 4) of s. 3 of ihe Act together with the grounds of detention and other particulars. B c D B c D #### .. E F G H A. K. ROY _v._ STATE _(Mitter,_ _J.)_ 555 ( _6)_ On 7th October 1971 a representation from the detenu petitioner was received in the Home Department (Special Section) of the State Government forwarded by the Superintendent of the Dum Dum Central Jail. (7) On 8th October 1971 the case of the detenu petitioner was placed before the Advisory Board. ( 8) On November 17, 1971 the representation of the petitioner was considered by the State Government. The State Government rejected it by an order of the same date. ( 9) On November 17, 1971 the Advisory Board after consideration of the materials placed before it and the said representation and after giving a personal hearing to the detenu petitioner· submitted its report to the State Government to the effect that there was sufficient cause for the detention. (10) By an order dated November 26, 1971 the State Government in cxt:,rcise of its powers under sub-s. ( 1) of s. 12 of the Act confirmed the order of detention . (11) The confirmation of the order was communicated by t4e State Government to the detenu petitioner by Jetter dated Decen1 ber 7, 1971. A copy of 1he representation of the petitioner to the Advisory Board is one of the annexures to the counter affidavit. The ·case made by him therein was that the allegations about the removal of over head traction wire were not true, that in any event they also disclosed commission of the offences of theft which are cognizable offences and any such incident, if true in fact, should have been reported to the police under the provisions of the Code of Crinlinal Procedure and in the circumstances of the case the grounds of detention notified in the order made against him were not tenable under the law. Counsel for the petitioner put forward a two-fold argument before us. His first submission was that even if the grounds of detention supplied to the petitioner were true in substance, they constituted cases of theft for which ample provision was made in the ordinary criminal law of the country and ithere was no necessity to resort to the Act for detaining the petitioner. Undoubtedly the Stat7 ~ould if i~ had cp.osen, !-,ave p;oceeded to put the ordil'!ary ~fll11ULal law m motion. But as 1s well known the condi- · tlons m some parts of West Bengal were far from normal at the time when the acts imputed to the petitioner were committed. Wa.gon-breakini: and rem.oval of overhead traction wire posed a ma1or prob~m to the mamtenance of supplies and service\ essential to the community. If therefore 'the au.thorities concerned felt that the trial of such cases under the ordinary law of the land 556 SUPREME COURt REPORTS [1973] l S.C.R. would not meet the requirements of the situation and .particularly in the case of activities of the. kind mentioned in the grounds which were committed in the middle of the night when there could be few eye witnesses and even those who viewed such inci· dents would be apprehensive of their own safety if they were asked to give evidence against such dangerous persons who went about arming themselves with swords and daggers not only to prevent their apprehension but also to 'terrorise persons who might feel inclined to pu\ .UP a)ly obstruction, the State would not be un.iustified in rrocuding in the way it did. A B No doubt the removal of overhead 'traction wire would be a case of theft but that ·is not to say that such removal would not C _r:_ also be prejudicial to the maintenance of supplies and services ;fl' essential to the community, specially when indulged in on a large scale. We have therefore no hesitation in rejecting the first con· tention advanced on behalf of the petitioner. Th11 secong contention urged was that ithere was inordinate delay in. the consideration of the petitioner's representation and as such, apart from any other consideration, the petitioner was entitled to an order of release. Reliance was placed on the decision of this Court in _K._ _I._ _Singh_ v. _State of Manipur(')._ In that case orders had been passed against the petitioners by the District Magistrate Manipur under sub-s. ( 2) of s. 3 read with subs. ( 1) of th~ Orissa Preventive Detention Act, 1970 as extended to Manipur. The orders had been passed with a view to preventing 1them from acting in any manner prejudicial to the maintenance of public order. The grounds of detention were furnished to the detenues on the day they wete taken into custody. The District Magistrate had made the necessary report 'lo the Administrator of Manipur under sub-s, (3) of s. 3 on February IO, 1971. The Administrator approved the orders ·of detention of the District Magistrate passed on January 31, 1971 and the orders of approval were also communicated to the detenu. The peti· tioners had made a joint representation on 1st March 1971 which was received by the Government on 3rd Maren, 1971. The Administrator considered the representations and ·rejected the same on March 20, 1971. The petitioners were informed about such rejeption by communication dated March 22, 1971. The Advisory Board considered the matter and sent its report on April 12, 1971 expressing its opinion tha!t the detention of the petitioners was justified. The ground advanced on behalf of the petitioners in that case with which we are concerned was that there was an inordinate delay of 17 days in the Administrator dispo~ing of the representation made by the petitioners and as (1) A.l.R. 1972 S.C. 438. D E F G H A B c D ## E F G A. K. ROY _v._ STATE _(Mitter,_ _!.)_ 557 such there was a violation of the provisions of Art. 22(5) of the Constiturtion. This ground was specifically taken in the writ petition in which it was expressly pleaded : " ...... even assuming that any information had to be collected by the Government the period of 17 days as stated by the Government was not at all necessary and any information could have been got easily from the Jailor, Manipur Central Jail, Imphal, within a few minutes as the iail was located within a very short distance from the Secrctariat." The explanation offered in the counter affid!\Vit of the State in that case was not accepted· as in the view of this Court ·the respondent did not state what steps, if a1:1y, had been taken in between March 3, 1971 and March 20, 1971 and there was only "a very bald statement that enquiries were sought from jail authori ties through Sub-Deputy Collector, Headquarters and the Jail authority sent ~letter on March 18, 1971." The Court referred to the fact that there was no averment in the counter affidavit that the· enquries referred to therein had been made orally and in the absence of such averment the court was of opinion that it would be reasonable to presume that there would be official communication in writing on the subject. In the result the Court held that there was an unexplained delay of 17 days in the Government disposing of the representation of the detenues. The four principles which this Court formulated in that cuse to be followed in regard to representation of detenues were : "Ftrst, the appropriate authority is bound to .give an opportunity to the detenu to make a representation and to consider the representa!tion of the detenu as early as possible. Secondly, the consideration of the representa>ion of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not t.~ any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Goveriunent is to exercise its opinion and judgment on the representation before sending the case along with the dellll!u's representation to the Advisory Board. If the appropriate Government will release the detenu the 558 SUPREME COllRT REPORTS [] 073] ] S.C.R. Government will not send the matter to the Advisory A Board. If however the Government will not release the detcnu the Government will. send the case along with the detenu's representation to the Advisory B0ard. If thereafter the Advisory Board will express an opinion in favour of the release of the detenu the Governmen1 will release· the de1enu.'' B On the facts of that case as the Court was not satisfied with th·~ explanation of the delay in the counter affidavit i't directed the _release of the petitioners holding that the unexplained delay by it· self was a sufficient ground for treating the orders of detention as illegal. We must consider the provisions of the Aot in the background of the constitutional provisions. Under Art. 22( 4): "No law providing for preventive deteD'tion shall authorise the detention of a person for a longer period than three months unless ( a) an Advisory Board . . . . . . has reported before the expiration of the said period of three months tha'! there is in its opinion sufficient cause for such deten **tion."** This is subject to ·the proviso that nothing in this sub-clause shall authorise 'the detention of any person beyond the maximurn period prescribed by any law made by Parliament uniler subclause (b) of cl. (7). Cl. ( 5) of Art. 22 provides that when any oerson is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall communicate to such person the grounds on which the order has been made and shall afford him the earliest opportµnity of making a representation against the order. The Act in this case is a Parliamentary Act under which the Central Government or the State Government may in terms of s. 3 ( 1), if satisfied with respect to any person with a view to preventing him from acting in any manner prejudicial to. . . . the maintenance of supplies and services essential to the community • . . . . it is necessary so to do, make an order directing that such person be detained. Under sub-s. (2) of the section any of the officers mentioned including the Di~trict Magistrate may, if satisfied as provided in sub-els. (ii) and (iii) of cl. (a) of sub-s.(l) exercise the power conferred by the said sub-section. S.3 (3) pro vides as follows : "When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the _fact_ to the State Government to which he is c D E F . G H ### 559 **A** **B** c **D** **E** F **G** **H** Provided that where under section 8 the g,ounds of detention are communicated by th~ tk authority making the order after five days but not later than fifteen days from the da1e of detention, this sub-section shall apply subject to the modification that for the words "twelve days" the words "twenty-two days" shall be substituted." U~der s. 8 (1) . "When a person is detained in pursuance of a detention order, ih'e authority making the order shall, as soon as may be, but ordinarily nO't later tllan five days and in exceptional circumstances and for reasons to be record.ed in writing, not later than fifteen days. from the date of detention. communicate to him the grounds on which the order has been made and shall aff0rd him the earliest opportunity of making · a !'~presentation against the order to the appropriate Government." Under s. 9( 1 l. the Central Government and each State Govern· ment has 10 constitute one or more Advisory Boards for the purpose of the Act. Sub-s. (2) deals with the constitu'tion of Advisory Boards. Under s. I 0 "Save as oth>~rwise expressly provided in this Act, in eveQ'. case where n detention order has been made under this Act, the appropria1e Government shall. with· in thirty days from . the date of detention under the order, place before the Advisory Board constituted by i't under section 9 the grounds on which the order has been mnde and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer, also the report of such officer under sub-section (3) of section 3." Under s. 11(1): "The Advisory Board shall. after considering the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person con A. _K._ ~OY _V,_ STt,TI! _(Mitter,_ _J,)_ subordinate together with th~ grounds on which **the** or\ier has been made and such O'!her particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the makin.e: thereof unless in the meantime it has heen approved by the, State Government : 560 SUPREME COURT REPORTS [1973] I S.C.R. cerne? ~esires to be heard, after hearing him in person, submvt its report to the appropriate Government within ten weeks from the date of detention." !-.lnder subs-. (2) the report of the Advisory Board must contain m a separate part thereof the opinion as to whether or not there is sufficient cause for the detention of the person concerned. Under s. 12 " ( 1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person the appropriate Government may confirm the detention order or continue the detention of the person concerned for such period as it thinks fit. (2) In any case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith." Under s. 13 the maximum period for which any person is detained in pursuance of any detention order which has been confirmed under s. 12 shall be twelve months from the diite of detention. _A_ Jl c D The Act shows that if a detention order is ma.de by an officer such as the District Magistrate it cannot remain in force for E more than 12 days after the making thereof unless in the meantime it is approved of by the State Government. The State Government is also under a duty to communicate the order made and its approval of the order within 7 days to the Central Government. Under s. 10 the appropriate Government must place the case within 30 days from the date of detention before th~ F Advisory Board. As the case was pla,ced before the Advisory Board on 8th October, 1971, all the provisions of the Act from sections 3 to 10 were undoubtedly given effect to within time. The onlv complaint which is now raised though not made in the petition is that the repres~ntation was considered by the Government as also by the Advisory Board only on 17th November . 1971, i.e. one month and ten days after the date of the receipt G of the repre5entation. As the Advisory Board has to consider case the case within ten was 9th0 Septembcr, 1971, there has been weeks from the date of detention no violation of the which in this provisions of section. The question is, can the order of det-~ntion be unheld on the facts of this case in the background of the constit\i.tional provisions. H It will be noticed that the Act does not make it ob!i11:atory on th1~ State Government i~self 110 consider the representation of A B c D E F G H A. K. ROY _v._ STATE _(Mitter,_ _I.)_ 561 the detenu but makes it obligatory on the part of the State Government to place Ll.e case before the Advisory Board along with the representation if any, made by the person affected by the order and where the order has been made by an officer also the report of such officer under sub-s. (3) of s. 3. The Advisory Board must consider the materials placed befor., it and may call for further information as it may deem necessary from the appro priate Government or from the person concerned and submit its report to the approµriate Government after hearing the detenu in person if he desires' to be heard or in any case where the Board eonsiders it essential tp give him a hearing. The Board must milke its report to the appropriate Government withir. ren week& l'rom the date of detention. Although s. 15 of the Act gives the appropriate Government power to release a detenu for a temporary period with or withou~ conditions, the Act does not empower the Government to release a detenu finally except after the report of the Advisory Board. When the Advisory Board reports that there is no sufficient cause for the detention of the person concerned, the Government must give effect to it and revoke the detention order. The main ·hurdle against the petitioner in this case is that he made no grievance in his writ petition about the delay in the consideration of his representation. ·If any such plea had been taken, we would have had to consider whether Government had any explanation to offer for 'the delay. In this case, as already noted, the Government had approved of the order of detention as. early as September 4, 1971 and submitted its report to the.Central Government. There was nothing in the representation of the petitioner, apart from a bare denial of his commission of any offence which necessitated the immediate consideration of the representation. As the Act did not empower the Government to release the detenu on the strength of the representation without sending the matter to the Advisory Board, it appears to us that Government's consideration of the representation, af~er its prior approval of the detention order would have little significance or import. Whether or not Government took any steps to enlighten itself more about the representation of the petitioner, we do not know and on the facts of this case, we are not called upon tc> consider.' In the result, we are not satisfied that this is a case where the detention order should be quashed. The petition is accordingly dismissed. G. C. _Petition dismissed:_