Tarit Kumar Chanda vs State of West Bengal

S.K. Bhattacharyya, J.—This application by the detenu under Article 226 of the Constitution of India is for a writ in the nature of habeas corpus. The detenu was taken into custody on and from March 4, 1973, under an order passed by the District Magistrate, Jalpaiguri, in exercise of the powers vested in him by Sub-section (1), read with Sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971, to be hereinafter referred to as ''the Act'', with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order and was served with the ground of detention containing one ground. The ground runs as follows:

That at about 10 p.m. on 8.8.1973, the detenu along with Ranadhar Ray Chowdhury and some other associates armed with dao, bhojali and other lethal weapons attacked the Railway employee Kalipada Kar in New Jalpaiguri Central Colony, P.S. Rajgunj, dist. Jalpaiguri, with a view to murder him. The detenu assaulted Sri Kar seriously on his head and different parts of his body. When some people attracted by the cries of the victim collected at the place the detenu and his associates left the place. The detenu wanted to murder Sri Kar as he opposed the loco employees'' strike organised by the detenu and the peo pie of his party. As a result of the detenu''s activity there was panic in the area and the loyal loco employees, who wanted to join their duties, in spite of strike, became panicky and were scared. A large number of such loco employees not only refrained from joining their duties but they also did not dare to come out of their houses after dusk. As a result of the activity of the detenu, people of the locality were scared and they were afraid to come out of their houses or to follow their normal avocation of life and widespread Police protection had to be taken in order to restore the normal condition.

Mr. A.P. Chatterjee, learned Advocate, assisted by Mr. Rabi Lal Maitra, has appeared for the Petitioner and has challenged the satisfaction of the detaining authority as invalid and contended that the detention has ceased to be preventive and has become punitive as the objective condition on the basis of which the subjective satisfaction was arrived at, has ceased to subsist. In the next place, Mr. Chatterjee contended that the representation of the detenu in the instant case was not considered by the State Government expeditiously.

Mr. Biman Kanti Bose, learned Advocate, appeared for the State and opposed the Rule. An affidavit-in-opposition was also affirmed by the detaining authority. Mr. D.P. Chowdhury, learned Advocate, assisted the Court as amicus curia in this matter and the Court is indebted to him for the valuable assistance received.

The first contention of Mr. Chatterjee is based on his reading the ground which, according to him, sets out certain circumstances in the context of which the detenu seems to have acted. These, according to Mr. Chatterjee, are that Sri Kar was assaulted by the detenu and his associates with a view to murdering him. The reason for the assault was that Sri Kar opposed the Railway loco employees'' strike organised by the detenu and the men of his party, as a result of which loyal loco employees, who wanted to join their duties in spite of the strike, became panicky and were scared and failed to join their duties. Mr. Chatterjee contends that the satisfaction of the detaining authority being based on this objective condition, the detention ceases to be preventive, the moment these objective conditions are found not to exist. In fact, the loco employees'' strike was called off long ago and further detention of the detenu, according to Mr. Chatterjee, has therefore become punitive. Mr. Chatterjee drew our attention to the fact that although the incident took place as early as August 1973 and the detenu was released from the connected criminal case on August 16, 1973, the order of detention was not passed till November 12, 1973 and even so, the detenu was not taken into custody until March 4, 1974. Meanwhile on December 2, 1973, the detenu was discharged from the criminal case. Mr. Chatterjee, relying on these dates, contends that there was no imminent likelihood of the detenu acting in a prejudicial manner particularly as it is not alleged that he committed any further prejudicial acts during the continuance of the loco employees'' strike. This, according to Mr. Chatterjee, is an abuse or misuse of the power of detention conferred by the Act. Mr. Bose appearing for the State opposed this contention of Mr. Chatterjee and contended that if the grounds were germane and relevant and the detaining authority at the time of making the order was satisfied that the detenu had acted prejudicially in the manner specified in Section 3 of the Act, it was not for the Court to consider objectively how imminent was the likelihood of the detenu indulging in these activities. Such a contention, it appears, was canvassed before the Supreme Court in the case of Masood Alam etc. Vs. Union of India (UOI) and Others, and was accepted by their Lordships.

Mr. Chowdhury elaborated this point saying that the satisfaction had to be tested with reference to the time of making of the order and not on the date of the examination or scrutiny of the same by the Court. It has been held that legality of the detention has to be considered with reference to either the date of filing the writ petition or at the time of the return. Two sets of views were expressed by the Supreme Court in a number of cases. The earlier view, viz. the Court was to have regard to the legality or otherwise of the detention at the time of the return was expressed by the Supreme Court in Naranjan Singh Nathawan Vs. The State of Punjab, , Ram Narayan Singh Vs. The State of Delhi and Others, and Col. Dr. B. Ramachandra Rao Vs. The State of Orissa and Others, , but the latter decisions of the Court seem to have taken the view that the legality has to be examined with reference to the date of the application. All these cases were recently considered by the Supreme Court in the case of Kanu Sanyal Vs. District Magistrate, Darjeeling and Others, where following the earlier decision in the case of A.K. Gopalan Vs. The Government of India, it was held that in a petition for habeas corpus writ the earliest date with reference to which the legality of the detention is to be considered is the date of filing the petition for such writ. Mr. Chowdhury, however, contends that although this refers to the legality of the detention, the satisfaction of the detaining authority has to be tested at the time of making of the orders. So, if the satisfaction was a reasonable one at the time of making the order, the necessity of continuance of the detention is not within the ken of judicial review.

Mr. Chatterjee has drawn our attention to the Full Bench decision of the Bombay High Court in In Re: Jayantilal Nathubhai Parekh, and contended that the question for the Court''s decision is whether the detention of which the detenu complains, that means the detention at the time when he seeks to take out a writ of habeas corpus, is valid or not. The aforesaid decision is not exactly to the point. In that case a person was detained under the Bombay Public Security Measures Act under an order purported to have been passed on April 2, 1948, but the detenu alleged that it was made antedated in order to suit the purpose of the executive. The Full Bench of the Bombay High Court (Supra) observed that where a subsequent order even though made after the amendment conferring greater powers, continued the original order for detention which was itself bad, the subsequent order was also bad. Mr. Chatterjee in referring to this decision contended that although the decision did not apply to the facts of this case in terms, the prejudicial conduct on the part of the person must be tested with reference to the date of its scrutiny by the Court and if on that date such conduct on the part of the person was impossible, the exercise of power for preventive detention would be meaningless and improper. Mr. Chatterjee further contends that, since the two forms of detention cannot be concurrent, a choice must be made between the two and this can only be done by the Court at the time when it examined the detenu''s application for his release. This part of Mr. Chatterjee''s argument, in my opinion, cannot be accepted for Section 14 of the Act entitles the detaining authority or the appropriate Government to revoke or modify the detention order at any time. In the case of Haridhan Saha v. State of West Bengal and Madanlal Agarwala v. State of West Bengal Unreported decision of the Supreme Court dated August 21 1974 in writ petition Nos. 1999 and 1913 of 1973, both disposed of under one judgment by a Constituent Bench of the Supreme Court, it was held that the power conferred u/s 14 of the Act which was for the benefit of the detenu carried with it the duty to exercise that power whenever and as soon as changed or new factors called for the exercise of that power. It would thus appear that the changed circumstances or new factors called for exercise of power by the appropriate Government u/s 14 of the Act and it is not for the Court to arrogate to itself these powers which is the function of the executive Government. We are informed that there is no direct authority on this point, but Mr. Chowdhury has referred to a Supreme Court decision and a Full Bench decision of the Patna High Court where this point came up for consideration in somewhat different form. In the case of Bhim Sen For R.S. Malik Mathra Das and Others Vs. The State of Punjab, the detenu, who as a cloth dealer had been disposing of stocks of cloth received for the district in the black market at exorbitant rates contrary to the condition under which he received these cloth through Government channel. It was sought to be canvassed on behalf of the Appellants that such loopholes as existed in the total control of distribution and sale and price of piece goods in the district was sealed by the order of the District Organizer and the Syndicate or the Corporation could not sell any cloth without an express order in writing from the District Organiser and therefore, there could be no black marketing after that date and further as the licences of the Appellants had been cancelled they were not in a position to deal in cloth and if the order of detention is now maintained against them, it would be more in the nature of punishment than prevention. The Supreme Court repelled that contention observing that the question whether the grounds were sufficient or not is not for the Court to decide. In that case, it was further contended that since under the amending Act of 1951, an Advisory Board was constituted and it can supervise and override the decision taken by the executive authority, the question whether the ground was sufficient or not became a justiciable issue in the Court. This was also negatived and it was held that the Court was not given the jurisdiction to decide whether the subjective decision of the authority making the order was right or not. The implication of this decision of the Supreme Court was that the subjective satisfaction is to be tested with reference to the time of making of the order and the validity of the satisfaction could not be impeached subsequently. In the case of Jagarnath Prasad and Another Vs. The State of Bihar and Others, it was contended before a Full Bench of the Patna High Court that the Petitioner''s shop was closed and his licence withdrawn and it was, therefore, unlikely for the Petitioner to indulge in black-marketing of cloth. The Full Bench of the Patna High Court negatived the contention holding that mere closure of the shop of the second Petitioner or even temporary seizure of the goods was no ground for holding that the order of detention was mala fide and the satisfaction could not be impeached that way. It follows from what has been discussed above that the satisfaction of the detaining authority is to be tested with reference to the date of making of the order and cannot relate back to the date of the scrutiny by the Court or date of filing of the writ petition before the Court. If the satisfaction was valid or sufficient at the date of the order, it is not for the Court to impeach it on the ground that its validity stands shaken by ''changed or new factors'' coming into existence subsequent to the date of the satisfaction. The contention of Mr. Chatterjee that the detention has ceased to be preventive and has become punitive cannot, therefore, be accepted.

As for the second contention of Mr. Chatterjee, the Petitioner in para. 5 of the writ petition contended that the detenu made a representation before the Advisory Board, but he has not been apprised of the result of the same. In the affidavit-in-reply filed on behalf of the detenu, it was specifically affirmed in para. 4 that the said written representation of the detenu was sent from the Jalpaiguri Jail on March 27, 1974, under registered post and the same must have reached the Home Department on or before March 30, 1974, at any rate before April 1, 1974, when the reference was made to the Advisory Board u/s 10 of the Act. The detaining authority in para. 3(i)(g) of his affidavit-in-opposition affirmed that this written representation was received by the Home (Special) Department of the State Government on April 2, 1974 and it was rejected by the State Government after careful consideration of the same on April 8, 1974. Mr. Chatterjee relying on the case of Jayanarayan Sukul Vs. State of West Bengal, contended that the consideration of the representation of the detenu by the State Government was a sine qua non before sending the case of the detenu to the Advisory Board and relied on the fourth formulation made by the Supreme Court in the aforesaid case. The fourth principle was stated by the Supreme Court in the following words:

the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu''s representation to the Advisory Board. If the appropriate Government will release the detenu, the Government will not send the matter to the Advisory Board. If, however, the Government will not release the detenu the Government will send the case along with the detenu''s representation to the Advisory Board.

Mr. Chatterjee relying on this fourth principle enunciated by the Supreme Court in Jayanarayan Sukul Vs. State of West Bengal, contends that the State Government, who must have received the representation before April 1, 1974, has failed in their duty and the detenu is, therefore, entitled to be released. We are unable to accept this contention of Mr. Chatterjee that the consideration of the representation of the detenu by the Government is a sine qua non before sending his case to the Advisory Board, for example, instances may be available where the representation may be received so late that little or no time would be left for the State Government to consider it. Whereas the reference to the Advisory Board u/s 10 of the Act is a statutory obligation from which there could be no deviation in the matter of the consideration of the representation of the detenu no time limit is fixed. In the case of Babul Mitra Vs. State of West Bengal and Others, the representation of the detenu was received by the State Government on October 13, 1971 and the case of the detenu was referred to the Advisory Board for its consideration on November 4, 1971. The said representation was rejected by the State Government on November 30, 1971 and was not at all considered before making the reference to the Advisory Board even though five days were available for the purpose. The Supreme Court observed that the time-lag was only an irregularity not going to the root of the matter inasmuch as no prejudice has been caused to the detenu. The representation in this case was considered by the State Government on the seventh day after its receipt and it can hardly be contended that the representation was not considered by the State Government expeditiously. This objection of Mr. Chatterjee must, therefore, be overruled.

In the result, therefore, the application fails and the Rule is discharged.

A.P. Bhattacharya J.

I agree.