Abdul Aziz Vs. The Distt. Magistrate
Burdwan & Ors [1972] INSC 255 (11 October 1972)
CHANDRACHUD, Y.V.
CHANDRACHUD, Y.V.
SHELAT, J.M.
DUA, I.D.
CITATION: 1973 AIR 770 1973 SCR (2) 646 1973
SCC (1) 301
CITATOR INFO:
R 1974 SC2154 (34) RF 1989 SC 371 (12)
ACT:
Maintenance of Internal Security Act, 26 of
1971--Murders alleged to be committed by petitioner whether have impact on
'public order as such--Validity of order of detention passed during pendency of
prosecution for same incidents in respect of which detention order
passed--Effect of delay in consideration of representation of detenu by State
Government--Parliament whether competent to confer power on appropriate
Government to pass order of detention for maintenance of 'public order'.
HEADNOTE:
The petitioner was detained under the
Maintenance of Internal Serenity Act, 1971 by an order of the District
Magistrate Burdwan, West 'Bengal. He challenged the order of detention in a
writ petition under Art. 32 of the Constitution. The contentions urged in support
of the petition were : (i) that the two incidents of murder mentioned in the
grounds of detention were germane to law and order but could have no impact on
'public order' as such; (ii) that the order of detention was passed during the
pendency of a prosecution launched against the petitioner for the very same
incidents in regard to which the order of detention had been passed; (iii) that
there was unreasonable delay in considering the petitioner's representation by
the State Government; and (iv) that it was not open to the Parliament
especially in view of the long title to the Act, to confer power on the
appropriate Government to pass orders of detention for the maintenance of
public order, as "internal security" cannot comprehend public order.
HELD : (i) The murders were stated to have
been committed by the petitioner and his associates with the definite object of
promoting the cause of the party to which they belonged.
These, therefore, were not stray or simple
cases of murder Such incidents have serious repercussion's not merely on law
and order but on public order. [648A] (ii) It has been held by this Court that
the mere circumstance that a detention order is passed during the pendency of a
prosecution will not vitiate the order. In conceivable cases it may become
necessary to pass an order of detention in anticipation of an order of
discharge or acquittal. [648E] W.P. No. 112 of 1972, decided on 17th August
1972, referred to.
(iii) The petitioner's representation was
received by the Government on 13th January 1972 and was rejected on 22nd
February 1972. Apparently therefore there was delay in considering the
P.-presentation. The affidavit on behalf of the State Government however showed
that the representation could not be considered earlier because although the
war with Pakistan had ended, its after-effects were still looming large in West
Bengal and the officers of the State Government had to take appropriate steps
for the return of the refugees who had taken shelter 'in West Bengal. The
delay, thus, was satisfactorily explained. [648F] (iv) Under Entry 3 of List
III of the Seventh Schedule to the Constitution, Parliament has the power to
legislate on "Preventive detention for reasons connected with the security
of a State the maintenance of supplies and services essential to the
community." Section 3(1)(a)(ii) of the Act 647 confers power on the
Central Government to pass orders of detention with a view to preventing any
person from acting in any manner prejudicial to the security of the State or
the maintenance of public order. This power cannot be controlled by anything
stated in the long title of the Act.
Besides the long title describes the Act as
one for providing for detention for the purpose of maintenance of internal
security and "matters connected therewith......
"Internal Security" is an
expression of width sufficient to comprehend the concept of public order.
Internal disturbances can threaten the security of the State and such
disturbances may assume grave proportion so as to have a direct impact on
public order. [649B]
ORIGINAL JURISDICTION: Writ Petition No. 276
of 1972.
Under Article 32 of the Constitution of India
for issue of a writ in the nature of habeas corpus.
R. P. Kathuria, for the petitioner.
G. S. Chatterjee, for the respondents.
The Judgment of the Court was delivered by
CHANDRACHUD, J.-This is a petition under Article 32 of the Constitution for the
issue of a writ of habeas corpus for the release of the petitioner.
On 16th November, 1971 the District
Magistrate Burdwan, West Bengal, passed an order under the Maintenance of
Internal Security Act, 26 of 1971, that the petitioner be detained "with a
view to preventing him from acting in any manner prejudicial to the maintenance
of public order". The petitioner was arrested on 17th December 1971 and on
the same date the rounds of detention were served on him. The petitioner's case
was placed before the Advisory Board on 7th January 1972, his representation
was received by the Government on 13th January 1972 and was rejected on 22nd February,
1972.
Two grounds were furnished to the petitioner
in justification of the order of detention. It was stated firstly, that the
petitioner and his associates were members of an extremist party (CPI-ML), that
on 16th August 1971, they armed themselves with lethal weapons like firearms,
choppers and daggers with a view to promoting the cause of their party, that
they raided the house of one Durgapada Rudra and murdered him and that the
aforesaid incidents created a general sense of insecurity, as a result of which
the residents of the locality could not follow their normal avocations for a
considerable period. The second ground of detention is that on 22nd May, 1971
the petitioner and his associates raided the house of Smt. Kshetromoni
Choudhury and murdered one Umapada Mallick who was staring in that house. This
incident is also stated to have created a general sense of insecurity amongst
the residents of the, locality.
Learned counsel appearing in support of the
petition contends that these two incidents are but simple cases of murder,
germane 648 to law and order, but which could have no impact on "public
order" as such. A short answer to this contention is that the, murders are
stated to have been committed by the petitioner and his associates with the
definite object of promoting the cause of the party to which they belonged.
These, therefore, are not stray or simple
cases of murder as contended by the learned counsel. Such incidents have
serious repercussions not merelly on law and order but on public order. We may
mention that a similar contention was rejected by this Court in Writ Petition
No. 190 of 1972 decided on 31st July 1972.
It is then contended that the order of
detention was passed during the pendency of a prosecution launched against the
petitioner for the very same incidents in regard to which the order of
detention has been passed and thereby the order is vitiated. One of the two
incidents is a legend to have taken place on 16th August 1971 and immediately
thereafter the petitioner was arrested. He was produced before the Judicial
Magistrate, Kalna on 10th September 1971 who enlarged him on bail on 6th
October 1971. The petitioner was eventually discharged by the learned
Magistrate on 16th December 1971, but in the meanwhile, the order of detention
was passed on 16th November 1971 and the petitioner was arrested in pursuance
of that order on 17th December 1971.
In regard to this contention it may be
sufficient to draw attention to the decision of this Court in Writ Petition No.112
of 1972 decided on 17th August 1972. It was held therein that the mere
circumstance that a detention order is passed during the pendency of a
prosecution will not vitiate the order. In conceivable cases it may become
necessary to pass an order of detention in anticipation of an order of
discharge or acquittal.
The next challenge to the order of detention
is that the delay of about 40 days caused in considering the representation
made by the petitioner is fatal to the order.
The petitioner's representation was received
by the Government on 13th January 1972 and was rejected on 22nd February 1972.
Apparently therefore there was delay in considering the representation but, the
affidavit of the Deputy Secretary Home (Special) Department, Government of West
Bengal, shows that the representation could not be considered earlier because
although the war with Pakistan had ended, its after-effects were still looming
large in West Bengal and the officers of the State Government had to take
appropriate steps for the return of the refugees who had taken shelter in West
Bengal. The delay, thus, is satisfactorily explained.
The last contention advanced on behalf of the
petitioner is that the Maintenance of Internal Security Act, 1971 having been
passed for the maintenance of internal security- it was not open to the
Parliament to confer power on the appropriate Government 649 to pass orders of
detention for the maintenance of public order,. as "internal
security" cannot comprehend "public order". Learned counsel
draws support to his argument, partly from the long title to the Act, which
describes it as "an Act to provide for detention in certain cases for the
purpose of maintenance of internal security and matters connected
therewith". We see no merit in this contention.
In the first place, under Entry 3 of List II
of the Seventh Schedule to the Constitution, Parliament has the power to
legislate on "Preventive detention for reasons connected with the security
of a State. the maintenance of public order, or the maintenance of supplies and
services essential to the community". Section 3(1) (a) (ii) of the Act
confers power on the Central Government and' the State Government to pass
orders of detention with a view to, preventing any person from acting in any
manner prejudicial to the security of the State or the maintenance of public
order. This power cannot be controlled by anything stated in the long title of
the Act. Besides, the long title describes the Act as- one for providing for
detention for the purpose of maintenance of' internal security and
"matters connected therewith".
"Internal' Security" is an
expression of width sufficient to comprehend the concept of public order.
Internal disturbances can threaten the security of the State and such
disturbances may assume grave pro-portions so as to have a direct impact on
public order. In the result the petition, fails and is dismissed.
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