Barun Ganguli vs District Magistrate

Sarma Sarker, J.—On March 18, 1971, after the arguments were closed we passed an order for release of the detenu reserving the judgment giving reasons for the same.

We propose to deliver the judgment today giving the reasons for the release of the" detenu.

The detenu challenged the order of detention passed against him on December 10, 1970, and served upon him on January 18, 1971, after he was arrested. The detention order was passed u/s 3(1) of the Prevention of Violent Activities Act, 1970 (hereinafter referred to as the Act). It has been alleged that the grounds of detention are vague and irrelevant with reference to the object of the Act. It is further urged that the grounds stated are false, non-existent and mala fide. The application was opposed on behalf of the State and an affidavit-in-opposition was served by the detaining authority, viz., the District Magistrate of Hooghly under whose orders the detenu was detained at Hooghly jail. The detaining authority has denied that the grounds are false or mala fide or that they are vague or lacking in necessary particulars. It is also stated that the grounds stated are relevant to the object in view and the order of detention was passed to prevent prejudicial acts leading to disturbance of public order.

Mr. Naranarayan Gupta, learned Advocate for the Petitioner has urged before this Court in the first place that the order of detention is invalid and illegal because in the grounds of detention both the objects, viz., security of the State and also public order have been mentioned. Secondly, it is also stated that the very fact that both the objects have been mentioned shows that there was no application of the mind by the detaining authority. Thirdly, it has been urged that the grounds stated are false, vague and irrelevant to the object of detention and the manner by which the object is sought to be disturbed. Lastly, the grounds stated relate to law and order and not public order.

We propose to consider these points one by one. As regards the first point raised by Mr. Gupta, it has been urged by Mr. Priti Bhusan Burman, learned Advocate appearing on behalf of the State, that the object of detention is not to prevent activities affecting both the security of the State and public order but that the object was only to prevent disturbance of public order as the order of detention itself will show. It is also brought to our notice that in the original order of detention only public order has been mentioned as the object and the words ''security of the State'' have been struck off. Mr. Gupta could not produce the original order of detention served on the detenu to show that both the objects are mentioned therein. In the long petition it is nowhere mentioned that both the objects were mentioned in the grounds of detention. On the materials on record we are unable to hold on the face of the affidavit by the detaining authority that the order of detention was not passed with the object of preventing disturbance of public order only and that both the objects were mentioned in the order of detention. Even assuming that both the objects are mentioned, that does not make the order of detention invalid. The twin objects ''security of the State'' and ''public order'' are only different in degree and not different in kind. When public disorder is of such description as it affects the security of the State it may as well be that a disturbance of public order may affect the security of the State. The detaining authority, therefore, has jurisdiction to pass the order of detention with a view to preventing prejudicial acts affecting either the security of the State or public order or both. The first contention of Mr. Gupta, therefore, fails.

As to the second objection Mr. Gupta argues that when both the objects have been mentioned there was no application of the mind by the detaining authority. It is further developed that in the grounds themselves there is no mention as to which ground is relevant to which clause of Section 3(2) of the Act, nor is there any expression of satisfaction in the grounds themselves or otherwise that prejudicial acts will lead to either disturbance of public order, or will affect the security of the State or both. As we have already observed that there is nothing wrong in principle if both the objects are mentioned in-the order of detention, the argument of Mr. Gupta loses its force. It is no doubt true that under the present Act the detaining authority must be satisfied not only with the grounds alleged as relevant to the prejudicial acts specified in various Clauses (a) to (e) of Section 3(2) of the Act but that there must be a further satisfaction that such acts, if not prevented, will affect either the security of the State or disturb the public order or both. But Mr. Burman, the learned Advocate appearing on behalf of the State, argues that there is no requirement of the statute that all these details have to be mentioned in the grounds themselves. As it is laid down in Section 3(1) of the Act that the detaining authority must express its satisfaction regarding the object in view, viz., the maintenance of the security of the State or of public order. It would however be better for all concerned if the detaining authority not only expressly states his "satisfaction regarding the object in view but also states in clear and unequivocal terms that with a view to prevent disturbance of the security of the State or of public order or by committing prejudicial acts mentioned in various clauses of Section 3(2) of the Act the detention order is necessary. Either expressly or by necessary implication from the grounds of detention the Court must be in a position to know that they have direct relevance to the prejudicial acts mentioned in Section 3(2) of. the Act. If such a relevance cannot be found out then order of detention cannot be held to be valid.

We have discussed in details in connection with Misc. Cases Nos. 6 of 1971 and 18 of 1971 disposed of on March 17, 1971, the implication of the present Act. It is not necessary for us repeat the reasoning in the instant case but we may refer to the conclusion reached therein. In para. 13 of the judgment it has been stated as follows:

Thus from a construction of the present Act we find that the detaining authority has to mention the object of detention in terms either of the ''security of the State'' or of ''public order'' or both and also the grounds on which detention order is made. this Court cannot enquire into the truth or otherwise of the grounds of detention nor can question the sufficiency of the materials or the reasonableness of the inference drawn from such materials as it is the subjective satisfaction of the detaining authority. But the subjective satisfaction under the present Act must show expressly that it has relevance to the objects as mentioned in Section 3(1) of the Act. Besides, the grounds of detention must have relevance to the prejudicial acts, as laid down in Section 3(2) of the Act. When these conditions are fulfilled the detention order cannot be challenged as not in accordance with law.

Mr. Burman, learned Advocate, further argues that the grounds of detention need not refer to one or other of the clauses mentioned in Section 3(2) of the Act. It depends on the subjective satisfaction of the detaining authority if an inference would be drawn from the grounds alleged whether any prejudicial acts specified in one or other clauses of Section 3(2) of the Act is likely to be committed affecting or likely to affect the security of the State or public order. The grounds of detention, it is alleged, need not be the same or similar to any prejudicial acts specified in various clauses of Section 3(2) of the Act. The argument may be theoretically sound but in practice, the distinction though real, loses its importance. The subjective satisfaction of the detaining authority has suffered a historical change. Under Rule 30(1)(b) of the Defence of India Rules discretion or subjective satisfaction was unlimited and any person could be detained without mentioning any grounds, if the order of detention is passed to prevent prejudicial acts mentioned in Rule 30(1) of the Defence of India Rules. Next comes the Preventive Detention Act, 1950 (hereafter referred to as the old Act), which provided in Sections 3 and 7 that though the order of detention still depended on the subjective satisfaction of the detaining authority, it has to serve the grounds of detention and afford facilities to the detenu for making an effective representation to the State Government. Last of all comes the present Act which not only provided for Section 3(1) & (8) (corresponding to Section 3(1) & (7) of the old Act) but also specified the manner in various clauses of Section 3(2) of the Act by which the security of the State or the public order is or is likely to be affected. The satisfaction is still subjective but an inference has to be drawn from the grounds alleged that the detention order is necessary to prevent prejudicial acts specified in Section 3(2) of the Act. In the present Act, therefore, the distinction between the grounds and the object has been made thin to the vanishing point. It is no doubt true that the satisfaction of the detaining authority is still subjective even under the present Act, but now the subjective satisfaction of the detaining authority must have a reference to (i) objects [Section 3(1) of the Act], (ii) prejudicial acts by which these objects are affected [Section 3(2) of the Act], (iii) also to the necessity of disclosing grounds and affording facilities for an effective representation against the order of detention [Section 8 of the Act].

It will be open to the Court to scrutinise the order of detention to find out if there was some rational or proximate connection of the grounds stated not only with the object in view in Section 3(1) of the Act but also with the manner or method as mentioned in Section 3(2) of the Act.

At this stage, therefore, we propose to examine the grounds of detention to find out if they are relevant to the purpose and provisions of the Act as laid down in Sections 3(1) and 3(2) of the Act, The grounds mentioned are three in number which run as follows:

(i) That on 17.5.70 between 6 p.m. and 7-30 p.m. you attended a secret meeting held in a room of an incomplete school building near Tarapukur Government colony near Serampore and wherein you asked those present at the meeting to arrange shelter for those who are wanted by Police. You also announced at the meeting that you would supply unauthorisedly small fire-arms to your individual followers for a sum of Rs. 250 each and urged them to use those arms for killing local Police persons.

(ii) That on 27.11-70 between 21.00 hrs. and 22.00 hrs. you attended a secret meeting held at Serampore where it was decided to kill stray Police personnel by means of fire-arms instead of conventional weapons like knives, lathis etc. It was also decided at the same meeting to make out a list of names of high ranking Government officials with a view to murdering them and to disrupting the current annual examination being held in the schools by exploding bombs, and (iii) That on 1.12-70 at about 8 p.m. you along with others secretly assembled at a secluded spot by the side of Delhi Road wherein you instructed those present at the meeting to immediately procure some pipe guns clandestinely for killing Government officials, landlords and Police officers.

11 We now take up the third objection urged by Mr. Gupta. It is not necessary for us in this case to go into the question of vagueness and to find out whether the alleged vagueness has in any way prevented the detenu from making effective representation, as we have found that the grounds alleged are not relevant to the purpose and provisions of the Act as laid down in Sections 3(1) and 3(2) of the Act.

Mr. Burman, learned Advocate appearing on behalf of the State, has stated before us that the ground No. 1 is relevant u/s 3(2)(d) of the Act, but Mr. Gupta has urged that the ground No. 1 is irrelevant either u/s 3(2)(a) or Section 3(2)(d) of the Act. We have considered the language in Section 3(2)(d) of the Act which is sought to be applied to ground No. 1. Now, Section 3(2)(d) of the Act applies to committing on instigating any person to commit some offence laid down in the clauses. The ground No. 1 does not disclose that any offence mentioned in the clauses was committed or instigated to be committed. The word ''instigation'' may be found in Section 107 of the Indian Penal Code. Section 107 of the Indian Penal Code defines abetment and in that connection three manners of abetment have been laid down, namely, firstly, instigating any person to do anything, secondly, conspiracy to do a thing if an act or illegal omission takes place in pursuance of that conspiracy and thirdly, intentionally aids by any act or illegal or illegal omission the doing of that thing. We analyze here only to point out that instigation is something different from conspiracy, and there could be no instigation unless there is a rational or proximate connection with the commission of an offence. Ground No. 1 at best amounts to a con-piracy or preparation to commit certain acts. If that be so, then Section 3(2)(d) is not attracted to ground No. 1.

Similarly, with regard to ground No. 2 it has been urged by Mr. Burman, learned Advocate appearing for the State, that Section 3(2)(d) of the Act is applicable, but we find that there was only preparation or conspiracy to commit certain acts and no such offence was committed nor instigated to be committed. As regards ground No. 3, Mr. Burman has urged that Section 3(2)(d) is applicable, but we are unable to agree with him. This is also a case either of conspiracy or preparation to commit certain acts. We are satisfied that there is no rational connection of the grounds alleged with the object and manner as laid down in Sections 3(2)(a) and 3(2)(d) of the Act and the connection, if any, is too remote and not proximate. Judged by this standard the order of detention must fail.

It is not necessary for us to consider the last objection of Mr. Gupta whether the grounds alleged could or could not affect public order and whether they were too vague or lacking in particulars for making an effective representation to the State Government.

In the result, the Rule is made absolute and the detenu has already been released by our order dated March 18, 1971.

A.P. Das, J.

I agree.