Nishi Kanta Mondal v. State of West Bengal

\ 224 **NISIIl** **KANTA** **MONDAL** _v._ **STATE OF WEST BENGAL** _April_ 18, 1972 [J. M. SHELAT AND **H.** R. KHANNA, JJ.] _West Bengal (Prevention_ _of_ _Violent Activities) Act,_ 1970 _(Presldenfs_ _Act_ 19 _of_ _1910)-Section s_ 3(2) (d), _10-"Actlng_ _in a_ "!"nn.~ _prejudi-_ _cial to the maintenance_ _of_ _public_ _order"-If s._ ·10 _makes it_ obl~atory _to_ _specify the dale_ _in_ _the order._ _'Constitution_ _o/_ _India--Article_ 356(1)-Law _made_ _under_ _if co-termi-_ _nous with the duration_ _of the proclamation._ The petitioner was detained under s. 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act 19 of 1970} as he was acting in a manner prejudicial to the maintenance of public order. The particulars supplied to' the petitioner showed that he and his associates hurled bombs as a result of which panic was created in the local:ty ancl that high explosive bombs were recovered from the possession of the petitioner and his associates. In the petition for the issue of a writ of _habe01J_ _corpus_ it was contended on behalf of the petitioner that (i) on the revocation of the Proclamation under article 356 of tho Constitution, President's Act No. 19' of 1970 ceased to have effect and. as such, the petitioner could not be kept in detention in pursuance of the order made underthe Act: (ii) the impugned detention order was not in conformity with section 10 of tile A.ct. as it did not specify the date of detc ition and (iii) the groun<ls of detention were not germane 1".l. the objects fo.- which a person can be ordered to be detained under the Act. Dismissing the petition, HELD : (i) The period for which a law made under article 356 (I) remains in force is not co-terminous with the duration of the proclamation. In view of the provisions of clause (2) article 357, President's Act 19 of 1970 shall remain in fore\> in spite of the revacation of the proclamation and would cease to have effect only on the expiry of one year after the proclamation has ceased to operate unless the provisions of the Act are sooner repealed or reenacted by Act of the apprupriate State Legisla ture. I227El (ii) There is nothing in section 10 which makes it obiigatory on the part of the detaining authority to specify the date of the commencement of the detention : The words "from the date of detention under the order" have reference to the date of the commencement of the deten.tion in pursWUlce of the detention order. [228E-Fl (iii) According to cl. (d) of sub-section (2) of section 3 the expres**sion uacting** **in** **!lny** **manner** **prejudicial** **to** **the** **maintenance** **of** **public** order" would include commission of an offence under the Arms Act, 1959, or the Explosive Substances Act, 1908. The particulars supplied to the petitio1'er clearly bring the case within the ambit of clause (d) of sub section (2) of section 3 of the Act. [229Hl In order to detain a person with a view to preventing him from acting in anv manner prejudicial to the security of the state or the maintenance of public order, as contemplated by s. 3(2) (d) of the Act, it is sufficient· **A** **B** ###### c **.E** **(I** **G** A **B** ##### c N. K. MONDAL v. WEST BENGAL _(Khanna,_ **J.)** 22S that the detaining authority considers it necessary to detain him in order to prevent him from doing any of the acts mentiorted in clause (d). If the past conduct and antecedents of the person concerned reveal a tendency to do the acts· referred to in clause (d), the order of detention would be upheld, even though because of some superyening cause like prompt action by the police, the public order is nQf actually disturbed. [230E-Gl ORIGINAL JURISDICTION : Writ Petition No. 7 of 1972. Under Article. 32 of the Constitution of India for a writ in the nature of _habeas corpus._ _H._ _K._ _Puri,_ for the petitioner. D. _N._ _Mukherjee_ and G. _S._ _Chatterjee,_ for the respondent. The Judgment of the Court was delivered by **Khanna,** J.-This is a pe\ition through jail for the issuance of a writ of _habeas_ _corpus_ by Nishi Kanta Mondal who has been ordered by the District Magistrate, 24-Parganas to be detained under section 3 of the West Bengal (Prevention of Violent Acti**D** vities) Act, 1970 (President's Act No. 19 of 1970), hereinafter referred to as the Act. The order of detention reads as under : "GOVERNMENT OF WEST BENGAL OFFICE OF TIIE.DISTRICT MAGISTRATE 24-PARGANAS E ORDER No. 352/71 Datetl, 'the 6-7-71 Whereas .I am satisfied with respect to the person· known as Shri Nishi Kanta Monda!, son of Shri Radhanath Monda! of Dacca para, P. S. Bcmgaon, Dt. 24F Parganas that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, I therefore in exercise of the powers conferred by sub-section ( 1) read with sub-section (3) of section 3 of th>,! West Bengal (Prevention of Violent Activities) Act, 1970 (PresiG dent's Act No. 19 of 1970), make this·order directing that 1the said Nishi Kanta Monda! be detained. Given under my hand and seal of office. Sd/DISTRICT MAGISTRATE **H** 24-PARGANAS 6-7-71" In pursuance of the above order, the petitioner was arrested on July 8, 1971 and was served with the. order as well as the 226 SUPREME COURT RE"vRTS [1973] l S.C.R. grounds of detentio_n on ·the same day. On July 10, 1971 ~e District Magistrate sent report to the State Government about his having passed the order for the detention of the petitioner. _The_ grounds of detention and other necessary particulars were . also sent along with the report. The State Government, after .considering the report and other particulars, approved the detentton order ·on July 17, 1971. Repreeentation made by the petitioner against his detention wa~ received by the State. Government on July 30, 1971. The representation was considered by the Staie Goverl!:ment and rejected on August 5, 1971. The case of the pel! tioner wa~ placed before the Advisory Board -on August 6, 1971. The petitioner's representation. was also sent to ~ Advisory Board. The Advisory Board. after considering. the material placed before it as well as the representation sent by the petitioner and afttlr giving him a heariilg in person, subjllittecl its report to the State Gmrernrnent on September 14, 19:7 I. Opinion was expressed by the Advisory Board that . there was sufficient cause for the detention of the petitioner. The State Government passe.d an order on October _5,_ 1971 confirming the orde~ for the detention of the petitioner. The. conjjfuiation order was thereafter communicaie4 to ihe petiti<>ner. The petition has been resisted by the State of W·~st Bengal and the affidavit of Shii Chandi Charan Bose, D .,uty Secretary, Home (Special) Department; Government of v 'st Bengal has bee'l. filed in opposition to the petition. Mr. Puri has addressed arguments _amicus cur ae_ on behalf of the petition.er, while the respondent State has b..en represented by Mr. D. N. Mukherjee. The first contention which has been advanced by Mr. Puri is that the Act was enacted by the President in exercise of the powers conferred by section 3 of the West Bengal State Legislature (Delegation of Powers) Act, 1970. According to section 3 of the last mentionecl Act, the power of the Legislature of the State of West Bengal to make laws, which had been declare.d by the Proclamation to be exercisable by or under the authority of Parliament, was conferred on the President. In the exercise ofthe said power, the President could, from time to time whether Parliament was or was not in session, enact, as a President's Act, a Bill containing such provisions as he considered necessary. Some other formalities, detailed in section 3, were also required to be complied with by the President, but it is not necessary for [1] the purpose of this case to refer to them. ~ction 2 of. the aforesaid Act defined "Proclamation" to mean the Proclamation issued on the 19th day of March, 1970, under article 356 of the Constrtution by the President, and published with the notification of the Government of India in the Ministrv of Home Affairs ~o. G.S.R. 490 of the said date. It is urged A B ##### c D F G H A ###### c D F G H In view of our fin,ding that the Act (Act: No. 19 of 1970) is still in force, it is not necessary to consider th~ question as to what would be the legal position in respect of subsisting detentions after the Act ceases to have effect in acc()rdance with article 357 (2) of the Constitution. N. K. MONDAL _v._ WEST BENGAL _(Khanna,_ _J.)_ 227 by Mr. Puri tha.~ the above mentioned Proclamation was revoked bY the President by another Proclamation in the beg.inning of this month. On account of the revocation of the ProclamatiO!l, the President's Act No 19 of 1970; according to the ~arnW counsel, ceas~ to have effect. As such, the petitioner could not be kept in ®tention in pursuance of the order made under that Act. The~e is, in our opinion, no force in the above contention because i~ is ha$ed upon the assumption 'lhat the lll_W made by· the President c~ to operate immediately upon '\ho; revocation of the Proclamation. This assumption is not correct and fUllS. contrary t«;> clause (~) of article 357 of the Co~tution. According t;> that clause, "any law made in exercise of the Jll)Wer of the Legislature of the State by Parliament or the Pl"'.,,sident or other authority referred l\o in sub-clause (a) of clause ( 1) vihich Par li~ent or !AA PtesWent or such other authority would not, but f<J1; the isai.ie of a Pro~ti.Qll under article 356. have been competent ~ we sh;tll, to the extent of ~ incompetency, cease to have etieCll: on the ex,pira\ion of a ped\lf;l of one year af\er the Proclama\i® h.as ~ed. to o~rate exceJ?t as res~ts thing d,one or Qmined to be do~ before the i;xpiration of the said period, ulilless the prqvisi\)lls. whi.ch shall s_o cease to have effect are sooner repel\led or re,e12act¢ with or v.:rth()ut modification by Act of !he apprOf)riate J,,eitislature". The ab()ve pro~on makes it plain that 1he p,eriod fllf which a f:\W i;nade under article 356( 1) remains in force is not co-timninous with the duration of the Proclama'lit)ll. It has npt be~n disJ?1,1ted. tlwt tl:w President was #### competent u,o4er clau~ n) of article 356 of ~he Constitution to enact Act No. 19 o~ 1970. 'the saj,d Act, in. view of the provisions of cilµ.l.Se (2) Q~ article 357, shall continue to remain in for.cc in s~iie of ~ revoca'ti.o!l of the Proclarnat_ion dated March ##### 19, 1970 and would cease w h1;tve eff~t only on the expiry of one year after the Proclamati,on has. ceased to operate except ~ respects things done or omirt:ed to· be don,e b~fore t:h.e exp~ration of the sail! Period, unless the provisiQils of the Act are sooner repe~ed or re-enacted with or without modilj,qtion by Aot of the a1>1>1QPrial!,e l,egisllltu~e. As the aforesaid period of one year has not expired and as the provisions of the Act have not been re ~aled or re-eµacted with or without modification by Act of the :appr()priate Legi,s!ature, the impugned, Act sh.ould be held to be ~ill in force. 228 SUPREME COURT REPORTS (19'73] 1 S.CR. Argument has then been advanced by Mr. Puri that the impugned detention order was not in conformity with section 10 of the Act as it did not specify the date of detention. Section 10 reads as under : "10. In every case where a detention order has been made under 'this Act, the State Government shall, within thirty days from the date of detention under the order, place tefore the Advisory Board, constituted by it U'lder section 9, the grounds on which the order has beer. made and the representiution, if any, made by the person affected by the order, and in case where the order has been made by an officer specified in sub-section ( 3 ) of section 3, also the rer;ort m.ade by such officer, under sub-section ( 4) of section 3." According to the learned counsel, the words "within thirty days from the date of detention under the ·order" in the section indi-• cate that it is imperative on the part of the detaining authority to specify the date of detention in the order. We find ourselves unable to accede _to_ this submission. All that s.ection 10 contemplates is that the State Government should within 30 days from the commencement of the detention place before the Advisory Board the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where an order has been made by an officer specified in sub-section (3) of section 3, also the report made by such officer under sub-section ( 4) of section 3. There is nothing, however, in the section which makes it obligatory on the part of _ the detaining ;iuthority to specify the date of the commencement of detention. Detention starts from the time a detenu is taken into custody in pursuance of the .detention order. In most of the cases it may be difficult to state in the detention order as to when the detention woui<l commence because the detaining authoritv cannot be certain at the time of the making of the detention 01der about the date on which the person ordered to be detained would be taken into custody. The possibility of the person ordered to be detained avoiding or delaying his apprehension by absconding or conr.ealing himself cannO't be ruled out. In cas.e the contention advanced on behalf of the petitioner were to be accepted, the detention order would cease to be enforceable in case the person ordered to be detain.eel cannot somehow be apprehended on the date mentioned in the order. We find ii difficult to draw such an inference from the language of section 10 of the Act. The words "from _the date of detention under the order'', in our opinion, have reference to 1he date of the commencement of the detention in pursuance of the detention order. A B ###### c D E G H ## • # A B E F G H N. K. MONDAL _V._ WEST BENGAL _(Khanna,_ /.) 229 Lastly, it has been argued by Mr. Puri that the grounds of detention are not germane to ithe objects for which a person can be ordered to be detained under the Act. In this connection, we find that, according to the grounds of detention which were fur· nished to the petitioner, he was being detained as _he was arting in a manner prejudicial to the maintenance of public order as evidenced by particulars given below : or more or any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the commission of such offence eiisturbs, or is likely to disturb, public order." It is manifest from the above definition that the expression "act· ing jn any manner prejudicial to the maintenance of public order" would include the commission of an offence under the Explosive Substances Act, 1908 when the commission of such offence disturbs or is likely to disturb public order. Particulars "On 12-2-71, at about 02.00 hrs., you and some of your associates being armw with bombs and other lethal weapons attacked Shri K. K.' Naskar, I.A.S., S.D.O., Bongaon and his guard by hurling bombs and thereby causing injuries to the guard constable when they came out on hearing sounds of explosion of bombs near the quarters of Shri S. C. Sarkar, "MagisttaJte 1st Class, Bongaon, at Amlapara near Bongaon Court. You, thereby, created a panic in the locality and disturbed· the public order. (2) On 23-2-71 between 10.45 hrs. and 02.15 hrs. Bongaon Police on receipt of a secret information searched a house at SubhaSlJalli, Bongaon and recovered 3 high explosive bombs and some explosive materials from you and your associates possession." According t6 section 3 of the Act, the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of publir: order, it is necessary so to do, make an order directing ithat such person be detained. District Magistrates a:nd some other officers under sub-section (3) of section 3 of the Act have been empowered, if satisfied as provided in sub-section (1), to exercise the powers conferred by the said sub-section. According to clause (d) of sub-section (2) of section 3 of the Act, for the purposes cf sub-section ( 1) the expres. sion "acting in any manner prejudicial to the security of the State or the maintenance of public order" _inter_ _alia_ means : "committing, or instigating any person to commit, any offence punishable with death or imprisonm~nt for life or imprisonment for a term extending to seven y~ars 230 SUPREME COURT REPORTS (1973] l S.C.R. supplied to 1the petitioner regarding the incident of February 12.. **A** 1971 show that the petitioner and his associates hurled bombs near the quarter of the S.D.O., Bongaon aild caused injuries to his guard, as a result of which panic was created in the locality and public order was disturbed. The particulars regarding the incident of February 12, 1971 clearly bring the case within ambit of clause (d) of sub-section (2). of section 3 of the Act. As regards the second incident ofFebruary 23, 1971 we find that the particulars show that three high explosive bombs and explosive m.iterials were recovered from the possession of the petitioner and his associ<ites on search of a house. The particulars thus show that the petitioner was guilty of an offence under the Explosive Substances Act. It is also obvious that the use of high explosive bombs was likely to dis [1] turb public order. The fact that the high explosive bombs were recovered from the petit;oner and his associates and taken into possession before they could be used would not take. the case out of the purview of clause (d). The earlier incident of February 12, 1971 gives a clear indication of the propensity of the petitioner to use and explode such bombs. The recovery of the high explosive bombs from the possession of the petitioner prevented him from using artd explodlng the bombs and disturbing public order. As the object of detention is to prevent the detenu from acting in any maimer prejudicial to the security of the State· or the maintenance of public order, the grounds of detention supplied to the petitioner, in our opinion, should be held to be germane to the purpose for which detention order can legally be made under the Act. In order to detain a person with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order, as contc:>mplated by section 3(2)(d) of the Act, it is sufficient that the detaining authority considers it necessary to detain him in ordet to prevent him from doing any of the acts merttioned in clause ( d). If the past conduct and antecedents of the person concerned reveal a tendency to do the acts referred to in clau·se **B** _c_ **D** E **F** **G** _(_ d), the order of de<tehtion would be upheld, even though because of some supervening cause like prompt action by the police, the public order is not actually disturbed. We, therefore, find no infirmity in the impugned detention order. It also cannot be said that the detention of the petitioner is not in accordance with law. The petition consequently fails and is dismissed. **K.B.N.** _Petition_ _dismissed._