Samaresh Chandra Bose Vs. District
Magistrate, Burdwan  INSC 170 (14 August 1972)
KHANNA, HANS RAJ
CITATION: 1972 AIR 2481 1973 SCR (1) 859 1972
SCC (2) 476
Maintenance of Internal Security Act No. 26
of 1971--Section 3(1) and 3(2), whether delay of 22 days in considering the
representation of the detenues by the Government unjustified-Whether violence
practised against political opponents and police party affects public
order-Whether detention order passed against detenues in jail is per se mala
The detenues and some other persons belonging
to CPI(M) killed a driver belonging to CPI. It was further alleged that the
detenues attacked the police party with bombs. The detention order was issued
while the detenues were still in custody. The detention was challenged, inter
alia, on the ground that the detention was vague, that the alleged acts of
violence did not raise any problem of public, order and that the detention was
maid fide. The detenues also challenged the validity of s. 17(a).
Dismissing the petition,
HELD : (i) The reasons given by the
Government, for delay, namely, Pakistani aggression during Bangladesh war,
go-slow movement of workers increase in the number of detention cases and spate
of anti-social activities by Naxalites and other political extremists, were
clear and convincing.
There was no inordinate delay in the
consideration of representations. Considering the facts of the case, the
representations were considered with reasonable dispatch.
[862E] Ujagar Singh v. The State of Punjab,
 S.C.R. 755 and Amiya Kumar Karmakar v. State of West Bengal W.P. No. 190
of 1972, relied on.
(ii) The petitioners knew who the
"political opponents" were and the detention order expressly stated the
respective parties to which the petitioners and the victim belonged.
The two grounds of detention are interlinked.
It cannot, therefore be said that the petitioners did not get opportunity to
make effective representation due to vagueness or ambiguity of grounds
furnished. [865H] (iii) It is quite clear that the, petitioners and associates
had indulged in acts prima facie designed to terrorist people to overawe their
political opponents and to cow down the police force and all this must have
inevitable effect of disturbing and paralysing the normal peaceful civil life
of the general public. The magnitude and impact of the activities of the
petitioners and his associates on the peace and tranquility of the law abiding
orderly society clearly shows that the acts of the detenues raised problems
affecting public order. [868D] Shyamlal Chakraborty v. Commissioner of Police,
 1 S.C.R. 762, relied on.
Sushanta Goswami, In re :  3 S.C.R.
138, Sudhir Kumar Saha v. Commissioner, Calcutta,  3 S.C.R. 360 and Arun
Ghosh v. State of West Bengal,  S.C.R. 288, distinguished.
(iv) The earlier discharge in a court of law
cannot preclude the detaining authority from coming to a subjective
satisfaction about the necessity 860 of the petitioner's detention which is
preventive in character. The detention order is not rendered illegal or mala
fide simply because the order was passed when the detenues were still in jail.
[868F] (v) Challenge, to s. 17(a), introduced as an amendment by Defence of
India Act, 42 of 1971 was not pressed.
ORIGINAL JURISDICTION : Writ Petitions Nos.
216-218 of 1972.
Under Article 32 of the Constitution of India
for the enforcement of fundamental rights.
Somnath Chatterjee, Narnarayan Gooptu,
Pulakmondal and Rathin Das, for the petitioners.
D. N. Mukherjee and G. Mukhoty, for the
The Judgment of the Court was delivered by
Dua, J. These three writ petitions (Samaresh Chandra Bose v.
District Magistrate, Burdwan & Ors. W.P.
No. 216 of 1972;
Shymal Biswas v. District Magistrate, Burdwan
etc., W.P. No.
217 of 1972 and Dulal Chandra Das v. District
Magistrate, Burdwan etc., W.P. No. 218 of 1972) raise common questions of law
and fact and are, therefore, being disposed of by a common judgment. In fact
the main arguments were addressed only in Samaresh Chandra Bose v. District
No. 216 of 1972), the arguments of this case
having been adopted in the other two cases. We would, therefore, refer to the
facts in W.P. No. 216 of 1972, Samaresh Chandra Bose who is employed as a
Supervisor of Alloy Steel Plant, Durgapur was, according, to the common case of
both sides arrested on October 13, 1971 and was an accused in Durgapur P.S.
case (No. 33 dated October 14, 1971) under ss. 147/188/307, I.P.C. and under S.
6(3) of the Indian Explosives Act. According to the petitioner he was woken up
while asleep in his quarters and arrested on the morning whereas according to
the respondent he was arrested at about 8.15 p.m. from Tilak Road "B"
Zone, Durgapur. It is alleged that the petitioner, along with his associates,
Shyamal Biswas and Dulal Chandra Das (the two writ petitioners in the connected
cases) and others had hurled a bomb towards a police party on patrol duty and
after having done so they tried to run away, but they were chased and
ultimately all three were apprehended. Th`e petitioner, according to the
respondent, was also wanted in connection with Durgapur P.S. case (No. 17 dated
October 8, 1971).
described by the petitioner in paragraph 8 of
his writ petition to be under ss. 148/149/326/307/326/302, I.P.C. The
petitioner ,was discharged in both the aforesaid criminal cases on October 861
28, 1971. After his discharge the petitioner was served with the detention
order dated October 26 , 1971 made by the District Magistrate, Durgapur in
exercise of the power conferred on him by s. 3(1) and (2) of the Maintenance of
Internal Security Act, 26 of 1971 (hereinafter called the Act) and arrested on
October 28, 1971.
On behalf of the petitioner Shri Somnath
Chatterjee, his learned Advocate, submitted as the first ground of attack
against the order of detention that the petitioner's representation to the
State Government was not considered with due expedition as contemplated by Art.
22(5) of the Constitution. The representation was received by the State
Government on November 23, 1971 but it was disposed of about 22 days thereafter
on December 16, 1971. According to him the explanation for the delay furnished
by the respondent is highly unsatisfactory and this inordinate delay has, therefore,
rendered the petitioner's detention invalid.
it is not disputed that the representation
received on November 23, 1971 was considered on December 16, 1971. The
explanation given by the State for the aforesaid delay in considering the
petitioner's representation is contained in paragraph 10 of the
counter-affidavit, wherein it is averred :
"...... that the written representation
of the detenu was duly considered by the State Government expeditiously and the
same was rejected after due consideration. I further state that at that time
due 'to influx of refugees and due to Pakistan aggression, most of the officers
of the Home Department were very busy with serious problems which faced the
country at that time and as, such the said representation of the petitioner
could not be considered earlier. Moreover I further state that due to go-slow
movement of workers launched co-ordination committee of the State Government
Employees during the period September to November 1971 there was serious
dislocation and delay in movement of files and disposal of cases. I further
state that delay was also caused due to abrupt increase in number of detention
cases during that time as the--re was spate of antisocial activities by
Naxalites and other political extremists in the State. 1 state that all the
above factors contributed towards the delay of about 28 days in considering the
representation of the detenu petitioner." This explanation in a nut-shell
shows the following reasons forthe delay in considering the petitioner's
representation (1) influx of refugees;
862 (2) Pakistani aggression keeping most of
the officers of the Home Department busy with the serious problems facing the
(3) go-slow movement of the workers launched
by Co-ordination Committee of the State Government employees during the month
of September to November, 1971 giving rise to serious dislocation and delay in
the movement of files and disposal of cases;
(4) abrupt increase in the number of
(5) spate of anti-social activities by Naxalites
other political extremists in the State.
Although according to Shri Chatterjee's
submission this explanation is vague and ambiguous and does not disclose
precise material on which the delay can be held by this Court to have been
satisfactorily explained, we are unable to find any ambiguity or vagueness in
it. In our opinion, the explanation contains distinct reasons based on facts
which are quite clear, definite and relevant and they can legitimately be taken
into account for determining whether the State Government had considered the
petitioner's representation with reasonable despatch and expedition or had
inordinately delayed its consideration. The explanation convincingly shows that
there was no inordinate delay on the part of the State Government and that the
representation was duly considered with reasonable dispatch or as expeditiously
as practicable in the Peculiar circumstances of the case, thereby fully
complying with the provisions of Art. 22(5) of the Constitution.This Court in
Ujagar Singh v. The State of Punjab(1) while construing the words "as soon
as may be" in s. 7 of the Preventive Detention Act, 4 of 1950 said that
these words mean reasonable dispatch and what is reasonable dispatch depends on
the facts of each case, it being not possible to set down an arbitrary time
limit. Recently in a number of decisions this Court has taken a similar view.
No precedent has been brought to our notice on the authority of which we may be
obliged to hold that the reasons contained in the explanation before us do not
satisfactorily account for the delay of 22 days and that the detention must on
that account be held to have become invalid. On the other hand a recent
decision of this Court dated July 31, 1972 in Amiya Kumar Karmarkar v. State of
West Bengal (2 ) delay of 21 days in somewhat similar circumstances was held
not to amount to inordinate delay so as to render the detention invalid.
(1)  S. C. R. 756.
(2) W.P. No. 190 of 1972.
863 Shri Chatterjee faintly contended that
according to the verification of the counter-affidavit the contents of para lo
are based on information derived from the records and, therefore, this should
more appropriately have been affirmed by the District Magistrate and not by the
Deputy Secretary of the Home (Special) Department. This submission seems to us
to be misconceived. In the State of West Bengal a Special Section of the Home
Department has been created for the purpose of dealing with the law and order
situation. In para 6(h) of the counter affidavit it is stated that on November
23, 1971 the Home Department (Special Section) received the petitioner's
representation. From para 8 of the counter-affidavit it appears that the said
representation was addressed to the Assistant Secretary, Home, (Special )
Department. It is indeed this Department which, as suggested in para 24 of the
counter-affidavit, has in its custody. relevant records of the State Government
from which the required relevant information has been derived by the deponent
who is the Deputy Secretary of the Home (Special) Department, Government of
West Bengal. He has affirmed that he has gone through the records kept in the
Special Section and that he is well-acquainted with the facts and circumstances
of the case. It is noteworthy that in this case there is no challenge to the
bona fides of the officer (District Magistrate, Durgapur) making the order of
detention : had there been such a challenge one might have as a rule expected
the officer concerned to file an affidavit controverting that challenge. This
contention is thus also unacceptable.
Shri Chatterjee also submitted that there is
no material on the record suggesting that the Special Section itself did not
continue to function effectively by reason of the five grounds contained in the
explanation for the delay in the considering the petitioner's representation.
According to the learned counsel this Section should not havetaken more than
just seven days for making-available to theState Government the requisite
material for performing its constitutional duty as contemplated by Art. 22(5).
Shri Chatteriee indeed went to the length of suggesting that the explanation
contained in the counter-affidavit was an afterthought. We are wholly unable to
agree with this submission. The very fact that a Special Section of the Home
Department was considered necessary to be created in the State of West Bengal
for dealing with inter alia the cases of detenues, convincingly suggests that
the situation there was far from normal; besides it is a matter of public history
of which judicial notice can be taken, and indeed even Shri Chatterjee could
not controvert it, that for several months preeceding the Tndo-Pak war which
began on December 3, 1971, there was a continuous influx of refugees (running
into several millions) from what was then known as East Pakistan and is now
free Republic of Bangla Desh and that 864 on our eastern borders the situation
was anything but normal, indeed, this unprecedented influx of refugees from the
very nature. Of things could not but give rise to colossal problems affecting
inter alia the law and order situation and maintenance of security in the
State-of West Bengal. Between November 23 and December 16, '1971, therefore,
the entire Home Department in West Bengal, including its Special Section which
owed its birth to the urgent need of dealing with the detenus and other allied
problems, can legitimately be assumed to have been under considerable stress
and strain on account of the vexed problem posed by the indiscriminate influx
of refugees with unknown antecedents from across our eastern borders. We are,
therefor,--, wholly unable to agree with Shri Chatterjee that there is no
relevant material for holding that the working of the Special Section of the
Home Department was also adversely affected for the reasons contained in the
The two grounds on the basis of which the
petitioner has been detained are :
"On 8-10-71 at about 13-45 hours you
along with your associates Dulal Chandra Das and 30/35 others, belonging to
CPI(M) with a view to reduce your political opponents, to submission and
passivity, being armed with lethal weapon like daggers etc. stopped D.S.P.
Bus No. WGH 7664 forcibly between 24th and
26th street on Sibaji Road, throwing brickbats, pulled down the driver from the
bus, assaulted him and stabbed Shri Jiten Chowdhury of 8/9 Akbar Road, a driver
of D.S.P. Bus, belonging to CPI, who was travelling in the said bus and
Your act created a general sense of panic and
insecurity in the minds of the residents of thearea of Sibaji Road in A Zone
Steel Township, who could not follow their normal avocations for a few days
after the incident under. the influence of terror.
2. Following a series of interparty clashes
on 8-10-71 curfew orders were promulgated under section 144 Cr. P.C. in D.S.P.
Township between 6 p.m. and 5 a.m. with effect from 810-71. On 13-10-71 during
the curfew hours at about 20-15 hours you along with your associates Dulal
Chandra Das and others belonging to CPI (M) being armed with lethal weapons
like bombs, knives etc., attacked lorry no. WGD 536 in which police party under
the leadership of H.C/1209 Anil Kumar Samanta of B Zone O.P. was on patrol
duty. You hurled bomb aiming the police party with a view to kill 865 them near
street no. of Tilak Road The bomb missed them and it exploded on the road Thepolice
party the explosion chased you and your associates and could arrest you and 2
others, while others fled away. On search one knife and a cycle chain was
recovered from possession of Samaresh Bose. Your act was intended to cow down
the police and your political opponents by terror for promoting the objectives
of the party to which you belong. By attempting to murder police personnel
engaged in maintenance of public order in the residential township area within
curfew period, you created a sense of panic and insecurity in the minds of
local people to such an extent that they were hesitant to pursue their normal
avocations for a considerable period after the incident." The learned
counsel faintly suggested that on December 8, 1971 the Indo-Pak war was at its
height and, therefore, it is inconceivable that the incident mentioned in
ground no. 1 could have occurred on that day because no one would have been so
reckless as to dare to indulge in such a violent activity, when armed forces
must be deemed to be present in the State in large numbers for fighting war on
the eastern border. This contention is difficult to accept. The fact of the
occurrence having taken place must be accepted as stated in the grounds because
the subjective satisfaction of the detaining authority on this point is final.
Indeed, it has also been affirmed in the counter-affidavit. Once the occurrence
is accepted, then, even on Shri Chatterjee's own line of reasoning the
necessity of the order for the detention of the petitioner and his associates
would appear too obvious to require any further Proof. This occurrence
highlights the terrorising character of the petitioner's party.
The learned counsel then urged that both the
grounds am vague. Because the expression "political opponents" has
not been explained with precision. In our opinion the learned counsel is not
quite correct in his submission. In ground no. 1 it is clearly stated that the
petitioner his associates be onging to CPI(M), with a view to reduce the
political opponents to submission and passivity, being armed with lethal
weapons etc., stabbed Shri Jiten Choudhury, a driver of D.S P. (Durgapur Steel
Project) Bus belonging to the C.P.I. (emphasis supplied). The political parties
are, therefore, quite clearly and specifically referred to in ,ground no. 1. It
cannot be said that the petitioner was kept in the dark or that he was unable
to understand the reference to the political opponents in this ground and was,
therefore, not in a position to make a proper, effective representation. In
ground no. 2 undoubtedly there is no reference to C.P.T. such as is found in
ground no. 1. But in our opinion ground no. 2 has to be , 6--L173Sup.CI/73 866
read and understood in the light of the reference made to the political
opponents in ground no. 1. The two grounds have to be read together in this
respect as they are clearly inter-linked. Reference in ground no. 2 to a series
of inter-party clashes on ,October 8, makes the position further clear. Ground
no. 2 states that the petitioner's act was intended to cow down the police and
the political opponents by terror for promoting the objectives of the party to
which he belonged. The petitioner's party being clearly specified in ground no.
1 which is inter-linked with ground no. 2, the challenge on the ground of
vagueness or ambiguity in ,round no. 2 must be held to be devoid of merit.
Shri Chatterjee then said that this ground
does not give rise to any problem of public order. We are unable to accept this
submission. Attempting to murder police personnel engaged on patrol duty in the
residential township area during curfew period in order to overawe them is, in
our view, an act which would obviously create a feeling of panic, alarm and
insecurity in the minds of the local inhabitants in general : it would also
suggest that any one opposing the political ideology of the petitioner's party
would be similarly exposed to violence at the hands of the petitioner and his
associates, who are not afraid even of the police force. This clearly
illustrates how direct and extensive is the reach of this crime on the general
The faint suggestion that during curfew time
the incident mentioned in ground no. 2 could not reasonably raise any problem
of public order because there would hardly be many members of the public,
present in the streets, seems to us to be misconceived. The incident is said to
have taken place at about 8-15 p.m. on October 13. 1971 during curfew hours.
The area in question in residential township area.
People, though not moving about in the
streets. would normally speaking be awake in their own houses and they could
not be unaware of such a serious clash between the petitioner and his
associates armed with bombs etc., on the one side and the police patrol Party
on the other, on whom the bombs were burled. This clash must have caused
serious disturbance of peace and tranquillity in the locality and would
inevitably had attracted attention of its residents.
Attack with bombs and other lethal weapons on
police patrol party in the circumstances cannot but have a grave impact on
public order and on even tempo of the life of the community.
People, though keeping in-door-,; in their
houses, would quite naturally get panic-stricken and feel frightened to move
about freely in the performance of their normal daily activities: they are also
likely to feel scared of moving out during curfew hours with the permission of
the authorities concerned for doing even most urgent work. Reference was made,
by Shri Chatterjee to the decision of this Court in Re : Sushanta Goswami(1)
where the incidents relied upon by the (1)  3 S. C. R. 138.
867 detaining authority were hold to relate
only to the problem of law and order. The incidents there do not seem to bear
any comparison with those before us and the petitioner's counsel also
ultimately did not seriously press the point.
The decision reported as Sudhir Kumar Saha v.
Commissioner, Calcutta(1) deals with the case of stray incidents and does not
constitute any binding precedent for the case in hand.
Reference was further made to Arun Ghosh v.
State of West Bengal(1) but there again the acts of the detenu were directed
against the family of one individual and not against women in general in the
locality. It was held in the reported case that the detenu's conduct however
reprehensible did not create the situation where it could be said that the life
of the community at large was being seriously disturbed or put out of gear : in
other words that there was a breach, or likelihood of a breachof public order.
The reported case is clearly distinguishable acts imputed to petitioner in tilt
else in hand directly raise problem of public order. The petitioner and his
associates belong to a political party and the two ,,rounds are founded on
inter-linked incidents, which are closely related to inter-party clashes
preceding the promulgation of the curfew order on October 8, 1 971 following
their political opponent Jiten Choudhury's murder. The second incident is a
direct violent clash with the police force during the curfew period. It is,
therefore, not possible to sustain Shri Chatterjee's contention that these two
grounds do not raise the problem of public order. These facts seem to bear a
close resemblance to those of Amiya Kumar Karmakar (Supra).
On behalf of the respondent our attention was
drawn to Shyamal Chakraborty v. Commissioner of Police, Calcutta (2) where the
question was discussed in those words :
"The question which arose is this : do
the grounds reproduced above relate merely to maintenance of order or do they
relat e to the maintenance of public order ? It will be noticed that the detenu
in each of these cases acted along with associates who were armed with lathes,
iron rods. acid bulbs, etc. It is clearly said in ground no. 1 that be
committed a riot and indiscriminately used acid bulbs, iron rods, lathis etc.
endangering human lives. This ground cannot be said to have reference merely to
maintenance of order because it affects the locality and everybody who lives in
the locality. Similarly, in the second ground, he along with his associates
prevented the police constables from discharging their lawful duties and thus
affected everybody living in the locality.
(2)  3 S.C.R. 288.
(3)  3 S.C.R. 762.
868 In ground no. 3, again the whole locality
was in danger as the. detenu and his associates were armed with deadly weapons
and these were in fact used for indiscriminately endangering human lives in the
locality. The object of the detenu seems to have been to terrorise the,
locality and bring the whole machinery of law and order to a halt. We are
unable to say that the Commissioner of Police could not in view of these
grounds come. to the conclusion that the detenu was likely to act in a manner
prejudicial to the maintenance of public order in the future and it was
necessary to prevent him from doing so. The fact that public order is affected
by an act which was also an offence under the Indian Penal Code seems to us to
be irrelevant." The reasoning of this decision fully applies to the case
before us. It is quite clear that the petitioner and his associates had
indulged in acts prima facie designed to terrorise people, to over-owe their
political opponents, and to cow down the police force. and all this must have
the inevitable effect of disturbing and paralysing the normal, peaceful civic
life of the general public. The magnitude of the impact of the activities of
the petitioner and his associates on the peace and tranquillity of the
law-abiding, orderly society clearly shows that they were directed to bring a
halt to the machinery of law and order. This must necessarily raise a problem
affecting public order. On these grounds the detention order cannot but be held
to be justified. As a preventive measure this order rightly ensures protection
of liberty of the public wrongfully endangered by the petitioner's terrorising
The fact that the petitioner was discharged
in a criminal case for the offences for which he was arrested on October 8,
1971 and that the detention order is dated October 26, 1971 when he was still
in jail custody would not render the detention order either illegal or mala
fide. After the order of discharge the petitioner was going to be released soon
and if the detaining authority felt satisfied on the material before it which
was germane to the object of detention, then, the petitioner's detention is not
open to challenge in he present proceedings. His detention is preventive : he
is to be prevented from acting in future in any manner prejudicial to the
maintenance of public order. His earlier discharge in a court of law cannot
preclude the detaining authority from coming to a subjective satisfaction about
the necessity of the petitioner's detention on grounds which are germane and
Before closing we may refer to another point
sought to be raised by Shri Chatterjee. He has referred us to the Defence of
India Act, 42 of 1971 which came into force on December 4, 869 1971. This
enactment to amend the Act in several respects.
It adds S. 17A after S. 17 and the new
section provides "Notwithstanding anything contained in the foregoing
Provisions of this Act, during the period of operation of the Proclamation of
Emergency issued on the 3rd day of December, 1971, any person (including a
foreigner) in respect of whom an order of detention has been made under this
Act, may be detained without obtaining the opinion of the Advisory Board for a
period longer than three months, but not exceeding two years from the date of
his detention in any of the following classes of cases or under any of the
following circumstances, namely :
(a) where such person had been detained with
a view to preventing him from acting in any manner prejudicial to the defence
of India, relations of India with foreign powers or the security of
India......." The learned counsel apprehending that this amendment of the
Act may entail the petitioner's detention beyond a period of 12 months as
contemplated in the unamended Act, desired to challenge this amendment.
In the counter-affidavit, however,. it is
averred in para 6A that the State Government, while affirming the petitioners
order of detention directed on December 24, 1971 that his detention is to
continue till the expiration of 12 months from the date of ,his detention. The
present detention of the petitioner is in any event valid under the unamended
Act. In view of this and of para 6A of the counteraffidavit Shri Chatterjee did
not press his challenge to the validity of the aforementioned amendment. We
are, therefore, not called upon to consider the effect of the said amendment on
the present case. It would, however, be open to the petitioner to take whatever
suitable steps are open to him after the expiry of 12 months from the date of
his detention if he feels aggrieved.
No fresh arguments were addressed in the
other two writ petitions and it was conceded that our order in W.P. No. 216 of
1972 would also cover the other two petitions. The final result is that all the
three petitions fail and are dismissed.
S.B.W. Petitions dismissed.