Khudiram Das Vs. The State of West
Bengal & Ors [1974] INSC 251 (26 November 1974)
BHAGWATI, P.N.
BHAGWATI, P.N.
REDDY, P. JAGANMOHAN GOSWAMI, P.K.
SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 550 1975 SCR (2) 832 1975
SCC (2) 81
CITATOR INFO:
F 1975 SC1877 (6) F 1976 SC 734 (6) RF 1976
SC1207 (53,300,523,560,561,1566) D 1978 SC 597 (55,195) RF 1979 SC 420 (10) RF
1979 SC 429 (24) R 1979 SC 478 (100) R 1979 SC1501 (3) R 1980 SC1382 (83) F
1980 SC1744 (16) RF 1980 SC1983 (4,6) R 1981 SC 28 (13,17,18,21) RF 1981 SC 431
(8) D 1981 SC1191 (5) R 1981 SC2166 (13,20) R 1982 SC 710 (71) F 1982 SC1023
(13) MV 1982 SC1325 (80) R 1982 SC1500 (6) RF 1983 SC 300 (4) R 1984 SC 444
(13,14,24) R 1985 SC1082 (6) E&R 1985 SC1416 (103,104) R 1986 SC 207 (3) RF
1986 SC 555 (6) RF 1986 SC1748 (14,22) R 1987 SC1192 (12) R 1988 SC1256 (7) RF
1990 SC 231 (17) D 1990 SC1446 (7) RF 1991 SC 574 (17,18)
ACT:
Constitution of India, 1950, Art. 22(5)-Scope
of-Power of detention if should satisfy Art. 19(1).
Maintenance of internal Security Act, 1971,
s. 3Satisfaction of detaining authority, if subjective-Power, if
unreasonable-Right of Court to examine record to see if detaining authority was
influenced by material not disclosed to detenu-'Other particulate meaning
of-Duty to disclose to detenu.
HEADNOTE:
The petitioner was detained by an order of
the District Magistrate under s. 3)1) and (2) of the Maintenance of Internal
Security Act, 1971. The grounds of detention stated that the petitioner was
involved in 3 incidents of removal of transformers and theft of copper wires.
disrupting the supply of water and
electricity and thus acted in a manner prejudicial to the maintenance of
supplies and services essential to the community. The District Magistrate sent
a report to the State Government sending along with the report, the
history-sheet of the petitioner.
The State Government after receiving the report
of the Advisory Board confirmed the detention.
In a petition under Art. 32, the petitioner
challenged his detention on the following grounds (1) The 3 incidents of theft
mentioned as grounds of detention were not sufficient, objectively, to justify
the District Magistrate's satisfaction that it was necessary to detain the
petitioner;
(2) If the power to detain could be exercised
on the subjective satisfaction of the detaining authority under the section,
then it imposed. unreasonable restrictions on the fundamental right of the
petitioner under Art. 19(1);
(3) The history sheet of the petitioner was
before the Dist. Magistrate, who, though he stated that beyond the 3 incidents
mentioned in the grounds he did not take any other material into account in passing
the detention order, must have been influenced by the other material in the
history sheet; and since that material was not disclosed to the petitioner,
there was a violation of Art. 22(5), and ss. 3 and 8 of the Act. and (4) The
history sheet of the petitioner was also before the State Government when it
approved the order of detention and the State Government must also have taken
the material into account in confirming the detention order and this was also.
contrary to the Constitutional mandate in Art.
22(5) and the legal mandate in ss. 3 and 8 of the Act, to give him an
opportunity to make an effective representation against his detention.
Dismissing the petition, HELD : 1(a) The
Constitutional imperatives enacted in Art.
22(5) are twofold : (i) the detaining
authority must, as soon as may be, that is, as soon as practicable after the
detention, communicate to the detenu the grounds on which the order has been
made; and (ii) the detaining authority must afford the detenu the earliest
opportunity of making a representation against the detention order. In the
context, 'grounds' does not merely mean a recital or reproduction of a ground
of satisfaction of the authority in the language of s. 3: nor is its
connotation restricted to a bare statement of conclusion of fact. Nothing less
than all the basic facts and materials which influenced the detaining authority
in making the order of detention must be communicated to the detenu.
[838F-840C] (b) The words used in s. 3(1) and (2) are 'if satisfied', and they
clearly import subjective satisfaction on the part of the detaining authority
before an 833 order of detention can be made. The power of detention is a
preventive measure. Since every preventive measure is based on the principle
that a person should be prevented from doing something which, if left free and
unfettered it is reasonably probable he would do, it must necessarily proceed
in all cases, to some extent, on suspicion or anticipation as distinct from
proof. This being the nature of the proceeding, it is impossible to conceive
how it can possibly be regarded as capable of objective assessment. The matters
which have to be considered by the detaining authority are whether the person
concerned, having regard to his past conduct judged in the light of the
surrounding circumstances and other relevant material. would be likely to act
in a prejudicial manner as contemplated by the Act. These are not matters
susceptible of objective determination and they could not be intended to be
judged by objective standards.
It must therefore be held that the subjective
satisfaction of the detaining authority constitutes the foundation for the
exercise of the power of detention and the Court cannot be invited to consider
the propriety or sufficiency of the grounds on which the satisfaction is based.
[842C-843A] Golam @ Golam Mallick v. The State of West Bengal, W.P. No. 270 of
1974, dec. on 12th September, 1974, Dr. Ram Krishan Bhardwaj v. The State of
Delhi & Ors., [1953] S.C.R. 708;
Shamrao Vishnu Parulekar v. The District
Magistrate. Thana, [1956] S.C.R. 644; State of Madras v. V. G.Row A.I.R. 1952
S.C. 597 followed.
(c) In Bhut Nath Male v. State of West Bengal
AIR 1974 SC 806, this Court observed that the exercise of the power of
detention 'implies a quasi-judicial approach'. This observation was not meant
to convey that the power of detention is quasi-judicial. It only intended to
emphasise that the detaining authority must exercise due care and caution and
act fairly af detention' and not other particulars'. Though it is not possible
to categorise precisely what those other particulars' can be. they may include
particulars relating to the background of the circumstances in which the Dist.
Magistrate reached his satisfaction, or
particulars found to be administratively necessary for him to communicate to
the State Government, so that its supervisory function may be effectively
discharged. There is nothing in Art. 22(5) of the Constitution or in any
provision of the Act which requires that these 'other particulars' should be
communicated to the detenu. [851C-H] 835 (b) In Hardhan Saha's case this Court
observed that the detenu has a right to be apprised of all the materials on
which an order of detention is passed or approved.' What the court had in mind
was only materials which constituted the grounds of detention and not the
'other particulars, because, (i) this Court could not have intended that in
addition to the grounds 'other particulars' should also be communicated when
there is no requirement to that effect Art. 22(5), and (ii) no such question
arose for decision in that case and the court was not called upon to decide
whether 'other particulars, communicated to the State Government under s. 3(3)
are required to be disclosed to the detenu. [852C-H] (c) In the present case,
the material from the history sheet which was not disclosed to the petitioner
did not form part of the grounds of detention on which the order of detention
was made by the Dist. Magistrate and approved by the State Govt., but merely
constituted 'other particulars' communicated by the Dist. Magistrate to the
State Government under s. 3(3). There was therefore. no obligation on the Dist.
Magistrate or the State Government to, discloso the material to the petitioner,
and the nondisclosure did not invalidate the approval by the State Government
of the detention order. [852H-853B]
ORIGINAL JURISDICTION : Writ Petition No. 324
of 1974.
Petition under Article 32 of the Constitution
of India.
R. K. Jain, for the petitioner.
D. N. Mukherjee, Sukumar Basu and G. S.
Chatterjee, for the respondents.
The Judgment of the Court was delivered by
BHAGWATI, J. This is a petition for a writ of habeas corpus under article 32 of
the Constitution challenging the validity of the detention of the petitioner
under an order of detention dated 3rd November, 1973 passed by the District
Magistrate, Malda under sub-section (1) read with subsection (2) of section 3
of the Maintenance of Internal Security Act, 1971. The questions raised in this
petition are of importance is they effect the fundamental right of personal
liberty which is one of the most cherished fundamental rights guaranteed by the
Constitution. It is necessary to state the facts giving rise to this petition
in so far as they are material to a proper understanding of the important
issues involved in this petition.
The District Magistrate, Malda passed an
order of detention dated 3rd November, 1973 under sub-section (1) read with
sub-section (2) of section 3 of the Act directing that the petitioner be
detained on the ground that it was necessary so to do "with a view to
preventing him from acting in any manner prejudicial to the maintenance of
supplies and services essential to the community". Within two days after
the making of the order of detention, that is on 5th November, 1973, the
District Magistrate made a report to the State Government and forwarded to the
State Government, along with his report, copies of the order of detention, the
history-sheet of the petitioner a document to which we.
shall have occasion to refer in some detail a
little laterand the grounds on which the order of detention was made.
The State Government,. presumably on a
consideration of the total material forwarded by the District Magistrate,
approved the order of detention on 12th November, 1973 under sub-section (3) of
section 3 of the Act. It appears that the petitioner could not be apprehended
for some time and it was only on 25th December, 1973 that he was ultimately
arrested pursuant to, 836 the order of detention. Immediately on his arrest,
the petitioner was served with a copy of the grounds of detention as required
by section 8, sub-section (1) of the Act. The grounds of detention stated that
the petitioner was being detained :
". . . on the grounds that you have been
acting in a manner prejudicial to the maintenance of supplies and service
essential to the community as evidenced from the particulars given below :
1. That on 22.4.73 at night at about 20.00
hrs. you along with your associates brake open an electrical transformer of STC
cluster No. 8 at Uttar Laxmipur village, P. S. Kaliachak.
At the time of operation the guard detected
it and challenged. You and your associates chased him with hasuas, iron rod
etc. to assault, when the guard fled away to save his life. You and your
associates took away copper wire from transformer as a result tube wells of the
cluster became inoperative.
Thus you disrupted the supply of water in
cultivation of paddy resulting failure of crops.
2. That on 1.5-73 at about 23.00 hrs. you
along with your associates broke open the transformer at village Dariapur under
Mauza Bedrabad, P.S. Kaliachak and took away the valuable portions and the
copper wire of the transformer when the villagers protested, you and your
associates threatened them with death. As such the villagers left the place out
of fear. As a result of such theft supply of electricity was disrupted in the
area.
3. That on 23-5-73 at 00.15 hrs. you along
with your associates Abdul Hamid son of Nur Md. of Uttar Laxmipur Dafadortola,
Mehini Ranjan Das & Hittan s/o L. Arjeen Mondal of Uttar Laxmipur, Nafar
Bhakattolal and two others removed the transformer from the electrical part of
village Natichapa Nayagram Deep tube well for the purpose of committing theft
of copper wire. When the same was brought down to the ground, O C. Kaliachak P.
S. with other staff who were on ambush patrol caught held of you and two of
your associates the spot. Thus you acted in a manner prejudicial to the
maintenance of supplies and services-essential to the community." The
petitioner did not make his representation against the order of detention until
the beginning of February 1974, but in the mean time, in obedience of section
10 of the Act, the case of the petitioner was placed by the State Government
before the Advisory Board on 22nd January, 1974 and the ground of detention
were also forwarded to the Advisory Board in order to enable it to give its
opinion. The representation of the petitioner against the order of detention
was in the meanwhile received by the State Government on 5th February, 1974.
The State Government considered the representation of the petitioner and rejected
it on 7th February, 1974, but since the case of the petitioner was pending
consideration by the Advisory Board, the State Government forwarded it to the
Advisory Board for its consideration. The 837 Advisory Board thereafter
submitted its report to the State Government on 26th February, 1974 under
section 11 of the Act stating that in its opinion there was sufficient cause
for the detention of the petitioner. The State Government, on receipt of the
report of the Advisory Board, passed an order dated 5th March, 1974, confirming
the detention of the petitioner under section 12, sub-section (1) of the Act,
and this order of confirmation was served on the petitioner through the
Superintendent of Police, Murshidabad. It is this detention, originating in the
order of detention, approved by the State Government and continued under the
order of confirmation passed by the State Government that is being challenged
in the present petition.
The petition was presented by the petitioner
from jail and since he was not represented by any counsel, this Court appointed
Mr. R. K. Jain, amicus curiae to present the case on behalf of the, petitioner.
Mr. R. K. Jain on behalf of the petitioner urged the following grounds against
the validity of the order of detention :(a) It is apparent from the grounds of
detention furnished to the petitioner that there were only three incidents of
theft on which the District Magistrate relied for the purpose of coming to a
satisfaction that it was necessary to detain the petitioner with a view to
preventing him from acting in any manner prejudicial to the maintenance of
supplies and services essential to the community.. These three incidents were
objectively not sufficient to justify such satisfaction and the order of
detention based on such satisfaction was, therefore, bad.
(b) If the view be taken that the power to
detain a person could be exercised by the detaining authority merely on its
subjective satisfaction which could not be tested with reference to objective
standards, section 3 of the Act, which empowered the detaining authority to
exercise the power of detention on the basis of its subjective satisfaction,
imposed unreasonable restrictions on the fundamental rights of the petitioner
under Art. 19)1) and was, therefore, ultra vires that article.
(c) The history-sheet of the petitioner was
before the District Magistrate when he made the order of detention and though
the District Magistrate stated in his affidavit in reply that beyond the three
incidents mentioned in the grounds of detention he did not take any other
material in the history-sheet into account in passing the order of detention,
it was impossible to say that he was not influenced by such other material and
since no opportunity was given to the petitioner to make an affective
representation against such other material, the order of detention was in
contravention of Art. 22(5) of the Constitution and section 8, subsection (1)
of the Act and was on that account invalid.
838 (d) The history-sheet of the petitioner
which contained other relevant material in regard to the petitioner in addition
to the three incidents referred to in the grounds of detention was before the
State Government when it approved the order of detention and in the absence of
any statement to the contrary on behalf of the State Government in the
affidavit in reply, it must be inferred that the State Government took such
other material into account in approving the order of detention. This was
contrary to the constitutional mandate in Art. 22(5) of the Constitution and
the legal mandate in section 3 read with s. 8 of the Act and it vitiated the
order of approval made by the State Government and rendered the detention of
the petitioner illegal.
These were the main grounds of challenge
urged by Mr. R. K. Jain ,on behalf of the petitioner. We shall proceed to
examine them.
We will first consider the constitutional
background against which the Act has been enacted and then refer to the
material provisions of the Act. The relevant article of the Constitution having
a bearing on this question is article
22. This article has been analysed in more
cases than one by this Court and it is clear from the decided cases that this
article provides various safeguards calculated to protect personal liberty
against arbitrary restraint without trial. These safeguards cannot be regarded
as substantial.
They are essential procedural in character
and their efficacy depends on the care and caution and the sense of
responsibility with which they are regarded by the detaining authority. Two of
these safeguards, which relate to the observance of the principle of natural
justice and which a fortiorari are intended to act as a check on arbitrary
exercise of power, are to be found in Art. 22(5) of the Constitution. This
provision of the Constitution introduces two procedural requirements embodying
the rule of audi alteram paritem to a limited but a crucial and compulsive
extent by providing that : "When any person is detained in pursuance of an
order made under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to such person the
grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order". The constitutional
imperatives enacted in this article are two-fold : (1) the detaining authority
must, as soon as may be, that is, as soon as practicable after the detention,
communicate to the detenu the grounds on which the order of detention has been
made, and (2) the detaining authority must afford the detenu the earliest
opportunity of making a representation against the order of detention.
These are the barest minimum safeguards which
must be observed before an executive authority can be permitted to preventively
detain a person and thereby drown his right of personal liberty in the name of
public good and social security. But, what is the content of these safeguards ?
What does the word 'grounds' mean ? Does it mean only the final conclusion
reached by the detaining authority on which alone the order of detention can be
made, or does it include the basic facts and materials from which the
conclusions justify839 ing the order of detention are drawn by the detaining
authority ? What is the inter-relation between the requirements of the first
and the second safeguards ? Is the efficacy of the second safeguard violated by
nonobservance of the requirement of the first safeguard ? If all the 'grounds'
which weighed with the detaining authority are not communicated to the detenu,
does it constitute merely a breach of the first safeguard or does it also
involve the violation of the second ? The answer to these questions does not
present any serious difficulty if only we consider the reason why the grounds
are required to be communicated to the detenu 'as soon as may be' after the
detention. Obviously the reason is twofold. In the first place, the requirement
of communication of grounds of detention acts as a check against arbitrary and
capricious exercise of power. The detaining authority cannot whisk away a
person and put him behind bars at its own sweet win. It must have grounds for
doing so and those grounds must be communicated to the detenu, so that, not
only the detenu may know what are the facts and materials before the detaining
authority on the basis of which he is being deprived of his personal liberty,
but he can also invoke the power of judicial review, howsoever limited and
peripheral it may be. Secondly, the detenu has to be afforded an opportunity of
making a representation against the order of detention. But if the grounds of
detention are not communicated to him how can he make an effective
representation ? The opportunity of making a representation would be rendered
illusory. The communication of the grounds of detention is, therefore, also
intended to subserve the purpose of enabling the detenu to make an effective
representation. If this be the true reason for providing that the grounds on
which the order of detention is made should be communicated to the detenu, it
is obvious that the 'grounds' mean all the basic facts and materials which have
been taken into account by-the detaining authority in making the order of
detention and on which, therefore, the order of detention is based. To quote
the words of one of us (Sarkaria, J.) in Golam @ Golam Mallick v. The State of
West Bengal(4)". . . in the context, 'grounds' does not merely mean a
recital or reproduction of a ground of satisfaction of the authority in the
language of section 3 of the Act; nor is its connotation restricted to a bare
statement of conclusions of fact. It means something more. That 'something' is
the factual constituent of the 'grounds' on which the subjective satisfaction
of the authority is based. The basic facts and material particulars, therefore,
which are the foundation of the order of detention, will also be covered by
'grounds' within the contemplation of article 22(5) and section 8, and are
required to be communicated to the detenu unless their disclosure is considered
by the authority to be against the public interest." This has always been
the view consistently taken by this Court in a series of decisions. It is not
necessary to burden this judgment with citation of all these decisions. It
would be sufficient if we quote the following observations of Patanjali Sastri,
C.J., in Dr. Ram Krishan Bhardwaj v. The State of Delhi & Ors. (2) ".
. . the petitioner has (1) W. P. No. 270 of 1974. decided on 12th September,
1974.
(2) [1953] S.C.R. 708.
840 the right under article 22(5), as interpreted
by this Court by a majority, to be furnished with particulars of the grounds of
his detention ,sufficient to enable him to make a representation which on being
considered may give relief to him'. We are of opinion that this constitutional
requirements must be satisfied with respect to each of the grounds communicated
to the person detained." Venkatarama Ayyar, J., also pointed out in
Shamrao Vishnu Parulekar v.
The District Magistrate, Thana(.1) that
construing the words 'grounds on which the order has been made' in their
natural and ordinary sense, "they would include any information or
material on which the order was based. The Oxford Concise Dictionary gives the
following meanings to the word 'ground' : 'Base, foundation, motive, valid reason'.
On this definition, the materials on which the District Magistrate considered
that an order of detention should be made could properly be described as
grounds therefor". (emphasis supplied). It is, therefore clear that
nothing, less than all the basic facts and materials which influenced the
detaining authority in making the order of detention must be communicated to
the detenu. That is the plain requirement of the first safeguard in article
22(5). The second safeguard in article 22(5) requires that the detenu shall be
afforded the earliest opportunity of making a representation against the order
of detention. No avoidable delay, no shortfall in the materials communicated
shall stand in the way of the detenu in making an early, yet comprehensive and
effective, representation in regard to all basic facts and material which may
have influenced the detaining authority in making the order of detention
depriving him of his freedom. These are the legal bulwarks enacted by the
constitution-makers against arbitrary or improper exercise of the vast powers
of preventive, detention which may be vested in the executive by a law of
preventive detention such as the Maintenance of Internal Security Act, 1971.
We may now refer to the provisions of the Maintenance
of Internal Security Act, 197 1. Section 3, sub-section ( 1) confers powers of
preventive detention on the Central and State Governments in the following
terms :
"The Central Government or the State
Government may,(a) if satisfied with respect to any person (including a
foreigner) that with a view to preventing him from acting in any manner
prejudicial to(i) the defence of India, the relation of India with foreign
powers, or the security of India, or (ii) the security of the State or the
maintenance of public order, or (iii) the maintenance of supplies and services
essential to the community, or (b)............................
it is necessary so to do, make order
directing that such person be detained." (1) [1956] S.C.R. 644.
841 Sub-section (2) of section 3 vests this
power of preventive detention also in a District Magistrate by enacting that a
District Magistrate " may, if satisfied as provided in subclauses (ii) and
(iii) of clause (a) of sub-section (1), exercise the power conferred by the
said subsection". But when an order of detention is made by a District
Magistrate, sub-section (3) of section 3 requires that :
". . . he shall forthwith report the
fact to the State Government to which he is subordinate together with the
grounds on which the order has been made and such other particulars as in his
opinion have a bearing on the matter, and no such order shall remain in force
for more than twelve days from the making thereof unless in the meantime it has
been approved by the State Government." Section 4, 5, 6 and 7 are not
material for the purpose of the present petition and we need not refer to them.
Section 8 is important and it may be reproduced as follows :
"(1) When a person is detained in
pursuance of a detention order, the authority making the order shall, as soon
as may be, but ordinarily not later than five days and in exceptional
circumstances and for reasons to be recorded in writing, not later than fifteen
days, from the date of detention, communicate to him the grounds on which the
order has been made and shall afford him the earliest opportunity of making a
representation against the order to the appropriate Government.
(2) Nothing in sub-section (1) shall require
the authority to disclose facts which it considers to be against the public
interest to disclose." Section 9 provides for the constitution of an
Advisory Board and section 10 lays on obligation on the appropriate Government,
in every case where an order of detention has been made, to place before the
Advisory Board, within thirty days from the date of detention under the order,
"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 the order has
been made by an officer, also the report by such officer under sub-section (3)
of section 3". The Advisory Board is required by section 11, sub-section
(1) to submit its report to the appropriate Government within ten weeks from
the date of detention after considering the materials placed before it and
after calling for such further information as it may deem necessary, and if, in
any particular case, it considers it essential so, to do or if the person
concerned desires to be heard, after hearing him in person. Where the Advisory
Board reports that there is in its opinion no sufficient cause for the detention
of the person concerned, the appropriate Government is obliged under section
12, subsection (2) to revoke the order of detention. If, on the other hand, the
opinion of the Advisory Board is that there is sufficient cause for the
detention, the appropriate Government may under section 12, sub-section (1)
confirm the order of detention and continue the detention or 7-L346 Sup CI/75
842 revoke the order of detention as it thinks fit on a consideration of all
the facts and circumstances which are before it. These are the material
provisions of the Act which have a bearing on the determination of the question
arising in this petition.
Now it is clear on a plain reading of the
language of subsections (1) and (2) of section 3 that the exercise of the power
of detention is made dependent on the subjective satisfaction of the detaining
authority that with a view to preventing a person from acting in a prejudicial
manner;
as set out in sub-clauses (i), (ii) and (iii)
of clause (a) of sub-section (1), it is necessary to detain such person.
The words used in sub-sections (1) and (2) of
section 3 are "if satisfied" and they clearly import subjective
satisfaction on the part of the detaining authority before an order of
detention can be made. And it is so provided for a valid reason which becomes
apparent if we consider the nature of the power of detention and the conditions
on which it can be exercised. The power of detention is clearly a preventive
measure. It does not partake in any manner of the nature of punishment. It is
taken by way of precaution to prevent mischief to the community. Since every
preventive measure is based on the principle that a person should be prevented
from doing something which, if left free and unfettered, it is reasonably
probable he would do, it must necessarily proceed in all cases, to some extent,
on suspicion or anticipation as distinct from proof. Patanjali Sastri, C.J.,
pointed out in State of Madras v. V. G. Row(1) that preventive detention is
"largely precautionary and based on suspicion" and to these
observations may be added the following words uttered by the learned Chief
Justice in that case with reference to the observations of Lord Finlay in Rex
v. Halliday,(2) namely, that "the court was the least appropriate tribunal
to investigate into circumstances of suspicion on which such anticipatory
action must be largely based". This being the nature of the proceeding, it
is impossible to conceive how it can possibly be regarded as capable of
objective assessment. The matters which have to be considered by the detaining
authority are whether the person concerned, having regard to his past conduct
judged in the light of the surrounding circumstances and other relevant
material, would be, likely to act in a prejudicial manner as contemplated in
any of sub-clauses (i), (ii) and (iii) of clause (1) of sub-section (1) of
section 3, and it so, whether it is necessary to detain him with a view to
preventing him from so acting. These are not matters susceptible of objective
determination and they could not be intended to be judged by objective
standards. They are essentially matters which have to be administratively
determined for the purpose of taking administrative action.
Their determination is, therefore,
deliberately and advisedly left by the legislature to the subjective
satisfaction of the detaining authority which by reason of its special
position, experience and expertise would, be best fitted to decide them. It
must in the circumstances be held that the subjective satisfaction of the detaining
authority as regards these matters constitutes the foundation for the exercise
of the power of detention and (1) A.I.R. 1952 S.C. 597.
(2)[1917] A.C. 260 843 the Court cannot be
invited to consider the propriety or sufficiency of the grounds on which the
satisfaction of the detaining authority is based. The Court cannot, on a review
of the grounds, substitute its own opinion for that of the authority, for what
is made condition precedent to the exercise of the power of detention is not an
objective determination of the necessity of detention for a specified purpose
but the subjective opinion of the detaining authority, and if a subjective
opinion is formed by the detaining authority as regards the necessity of
detention for a specified purpose, the condition of exercise of the power of
detention would be fulfilled. This would clearly show that the power of
detention is not a quasi-judicial power. It was, however, sought to be
contended on behalf of the petitioner, relying on the observation of this Court
in Bhut Nath Mata v. The State of West Bengal(1) that the exercise of the power
of detention "implies a quasi-judicial approach", that the power must
be regarded as a quasi-judicial power. But we do not think it would be right to
read this observation in the manner contended on behalf of the petitioner. This
observation was not meant to convey that the power of detention is a quasi judicial
power. The only thing which it intended to emphasise was that the detaining
authority must exercise due care and caution and act fairly and justly in
exercising the power of detention.
But that does not mean that the subjective
satisfaction of the detaining authority is wholly immune from judicial
reviewability. The Courts have by judicial decisions carved out an area, limited
though it be, within which the validity of the subjective satisfaction can yet
be subjected to judicial scrutiny. The basic postulate on which the courts have
proceeded is that the subjective satisfaction being a condition precedent for
the exercise of the power conferred on the executive, the court can always
examine whether the requisite satisfaction is arrived at by the authority: if
it is not, the condition precedent to the exercise of the power would not be
fulfilled and the exercise of the power would be bad. There are several grounds
evolved by judicial decisions for saying that no subjective satisfaction is
arrived at by the authority as required under the statute.
The simplest case is whether the authority
has not applied its mind at all; in such a case the authority could not
possibly be satisfied as regards the fact in respect of which it is required to
be satisfied. Emperor v. Shibnath Bannerji (2) is a case in point. Then there
may be a case where the power is exercised dishonestly or for an improper
purpose : such a case would also negative the existence of satisfaction on the
part of the authority. The existence of 'improper purpose', that is, a purpose
not contemplated by the statute, has been recognised as an independent ground
of control in several decided cases. The satisfaction, moreover, must be a
satisfaction of the authority itself, and therefore, if, in exercising the
power, the authority has acted under the dictation of another body as the
Commissioner of Police did in Commissioner of Police v.
Gordhandas Bhanji(3) and the Officer (1)
A.I.R. 1974 S.C. 806.
(2) A.I.R. 1943 F.C. 92.
(3) [1952] S.C.R. 135.
844 of the Ministry of Labour and National
Service did in Simas Motor Units Ltd. v. Minister of Labour and National
Service(1) the exercise of the power would be bad and so also would the
exercise of the power be vitiated where the authority has disabled itself from
applying its mind to the facts of each individual case by self-created rules of
policy or in any other manner. The satisfaction said to have been arrived at by
the authority would also be bad where it is based on the application of a wrong
test or the misconstruction of a statute. Where this happens, the satisfaction
of the authority would not be in respect of the thing in regard to which it is
required to be satisfied.
Then again the satisfaction must be grounded
on materials which are of rationally probative value'. Alachindar v.
King. (2 The grounds on which the
satisfaction is based must be, such as a rational human being can consider
connected with the fact in respect of which the satisfaction is to be reached.
They must be relevant to the subject matter of the inquiry and must not be
extraneous to the scope and purpose of the statute. If the authority has taken
into account, it may even be with the best of intention, as a relevant factor
something which it could not properly take into account in deciding whether or
not to exercise the power or the manner or extent to which it should be
exercised, the exercise of the power would be bad. Pratap Singh v. State of
Punjab (3 ). If there are to be found in the statute expressly or by
implication matters which the authority ought to have regard to, then, in
exercising the power, the authority must have regard to those matters. The
authority must call its attention to the matters which it is bound to consider.
There is also one other ground on which the
subjective satisfaction reached by an authority can successfully be challenged
and it is of late becoming increasingly important. The genesis of this ground
is to be found in the famous words of lord Halsbury in Sharp v. Wakefield(4
"..... when it is said that something is to be done within the discretion
of the authorities-that something is to be done according to the rules of
reason and justice, not according to private, opinion-according to law and not
humour. It is to be, not arbitrary, vague, fanciful, but legal and
regular." So far as this ground is concerned', the courts in the United
States have gone much further than courts in England or in this country. The
United States courts are prepared to review administrative findings which are
not supported by substantial evidence, that is by "such relevant findings
as a reasonable man may accept adequate to support a conclusion". But in
England and in India, the courts stopshort at merely inquiring whether the
grounds on which the authority has reached its subjective satisfaction are such
that any reasonable person could possibly arrive at such satisfaction.
"If", to use the words of Lord Greene, M. R., in Associated
Provincial Picture (1) [1964] All. E.R. 201.
(2) A.I.R. 1950 F.C. 129..
(3) A.I.R. 1964 S.C. 72.
(4) [1891] A.C. 173, at 179.
845 Houses Ltd. v. Wednesbury
Corporation(1)-words which have found approval of the House of Lords in Smith
v. East Eilor Rural District Council(2 ) and Fswcoit Properties Ltd. v. Buckingham
County Council(3)-the authority has "come. to a conclusion on so
unreasonable that no reasonable authority could ever have come to it, then the
courts can interfere".
In such a case, a legitimate inference may
fairly be drawn either that the authority "did not honestly form that view
or that in forming it, he could not have applied his mind to the relevant
facts". Ross v. Papadopollos. (4 ) The power of the court to interfere in
such a case is not as an appellate authority to override a decision taken by
the statutory authority, but as a judicial authority. which is concerned, and
concerned only to see. Whether the statutory authority has contravened the law
by acting in excess of the power which the legislature has confided in it. It
is on this ground that the order of preventive detention made by the District
Magistrate in Debu Mahto v. State of West Bengal(5) was struck down by this
Court. There, in that case, one single solitary act of wagon breaking was
relied upon by the District Magistrate for reaching the satisfaction that with
a view to preventing the detenu from acting in any manner prejudicial to the
maintenance of supplies and services to the community, it was necessary to
detain him. This Court pointed out subject to certain reservations that it was
difficult to see how "one solitary isolated act of wagon breaking
committed by the petitioner could possibly persuade any reasonable person to reach
the satisfaction that unless the petitioner was detained he would in all
probability indulge in further acts of wagon breaking". This Court did not
go into the adequacy of or sufficiency of the grounds on which the order of
detention was based, but merely examined whether on the grounds given to the.
detenu, any reasonable authority could possibly come to the conclusion to which
the District Magistrate did. It is true that this ground in a sense tends to
blur the dividing line between subjective satisfaction and objective
determination but the dividing line is very much there howsoever faint or
delicate it may be, and courts have never failed to recognise it.
This discussion is sufficient to show that
there is nothing like unfettered discretion immune from judicial reviewability.
The truth is that in a Government under law, there can be no such thing as
unreviewable discretion. "Law has reached its finest moments", said
Justice Douglas, "when it has freed man from the unlimited discretion of
some ruler, some official, some bureaucrat-Absolute discretion is a ruthless
master. It is more destructive of freedom than any of man's other
inventions". United States v. Wunderlick.(6) And this is much more so in a
case Where personal liberty is involved. That is why the Courts have devised
various methods of judicial control so that power in the hands of an individual
officer or authority is not misused or abused or exercised arbitrarily or
without any justifiable grounds.
(1) (1948) 1 K. B. 223. (2) 1956 A.C. 736.
(3) [1961] A.C. 636. (4) (1958) 1 W.L.R. 546.
(5) A.T.R. 1974 S.C. 816. (6) 342 U. S. 98.
846 The next question which then arises for
consideration is whether section 3 of the Act in so far as it empowers the
detaining authority to exercise, the power of detention on the basis of its
subjective satisfaction imposes unreasonable restrictions on the fundamental
rights of the petitioner under clauses (a) to (d) and (g) of article 19, and
is, therefore, ultra vires and void. The view taken by the majority in A. K. Gopalan
v. State of Madras (1) was that article 22 is a selfcontained Code, and
therefore, a law of preventive detention does not have to satisfythe
requirements of articles 14, 19 and 21. This view came to be considered by this
Court in three subsequent decisions to all of which one of us (P. Jaganmohan
Reddy, J.) was a party. In Rustom Cavasjee Cooper v. Union of India,(2 )it was
held by a majority of judges, only Ray, J., as he then was, dissenting, that
though a. law of preventive detention may pass the test of article 22, it has
yet. to satisfy the requirements of other fundamental rights such as article
19.
The ratio of the majority judgment in R. C.
Cooper's case(2) was, explained in clear and categorical terms by Shelat, J.,
speaking on behalf of seven judges in Sambhu Nath Sarkar v.
State of West Bengal(3) The learned Judge
said :
"In Gopalan's case (supra) the majority
court had held that Article 22 was a self-contained Code and therefore a law of
preventive detention did not have to satisfy the requirement of Articles 19, 14
and 21. The view of Fazl Ali, J., on the other hand, was that preventive
detention was a direct breach of the right under Article 19 (a) (d) and that a
law providing for preventive detention had to be subject to such judicial
review as is obtainable under clause (5) of that Article.
In R. C. Cooper v. Union of India (supra) the
aforesaid premise of the majority in Gapalan's case (supra) was disapproved and
therefore it no longer holds the field. Though Cooper's case (supra) dealt with
the interrelationship of Article 19 and Article 31, the basic approach to
construing the fundamental rights guaranteed in the different provisions of the
Constitution adopted in this case held the major premise of the majority in
Gopalan's case (supra) to be incorrect." Subsequently in Haradhan Saha v.
State of West Bengal & Ors.(4) a Bench of five judges, after referring to
the decisions in A. K. Gopalan's case (supra) and R. C. Cooper's ease (supra
and pointing out the context in which R. C.
Cooper's case supra) held that the
acquisition of property directly impinged the right of the bank to carry on
business, other than banking, guaranteed under article 19 and article 31(2) was
not a protection against the infringement of that guaranteed right, proceeded
on the assumption that the Act which is for preventive detention has to be
tested in regard to its reasonableness with reference to article 19. That
decision accepted and applied the (1) [1950] S.C.R. 88.
(2) [1970] 3 S.C.R. 530., (3) [1973] 1 S.C.C.
856.
(4) [1975] 1 S.C.R. 778, 847 ratio in Shambhu
Nath Sarkar's case (supra) as well as R. C.
Cooper's case (supra) to both of which Ray,
C.J., was a party. This question, thus, stands concluded and a final seal is
put on this controversy and in' view of these decisions, it is not open to any
one now to contend that a law of preventive detention, which falls within
article 22, does not have to meet the requirement of article 14 or article 19.
Indeed, in Haradhan Saha's case (supra), this Court proceeded to consider the
challenge of article 19 to the validity of the Act and held that the Act did
not violate any of the constitutional guarantees embodied in article 19 and was
valid. Since this Court negatived the challenge to the validity of the Act on the
ground of infraction of article 19 and upheld it as a valid piece of
legislation in Haradhan Saha's case (supra), the petitioner cannot be permitted
to reagitate the same question merely on the ground that some argument directed
against the constitutional validity of the Act under article 19 "Was not
advanced or considered by the Court in that case. The decision in Haradhan
Saha's case (supra) must be regarded as having finally laid at rest any
question as to the constitutional validity of the Act on the ground of
challenge under article 19.
That disposes of grounds (a) and (b) and we
must now proceed to consider ground (c). Now before we consider ground (c), we
must deal with an objection raised by counsel on behalf of the State, which, if
well founded, would cut short an inquiry into this ground. Counsel on behalf of
the State submitted that though the District Magistrate in his affidavit in
reply admitted that besides the three incidents referred to-in the grounds of
detention, other material was also placed before him, he stated on oath that he
did not take such other material into account in making the order of detention
and this statement on oath made by him must be accepted as correct and that
should, be an end to all further inquiry by the Court. He strenuosly protested
against the Court requiring the State to produce the historysheet of the
petitioner containing other material which was before the District Magistrate.
His argument was that it was not competent to the Court to probe further into
the matter for the purpose of examining what was the nature of the other
material before the District Magistrate and whether he was influenced by such
other material in making the order of detention. This claim made by counsel on
behalf of the State is indeed a hold claim calculated to shut out judicial
instruction merely on the strength of ipse dixit of the detaining authority. We
cannot countenance such a claim. Indeed, in Daktar Mudi v. State of West
Bengal(1) a similar claim was made on behalf of the State of West Bengal and it
was negatived by this very Bench speaking through one of us (P. Jaganmohan
Reddy, J.) in the following words "It was contended. by Mr. Mukerjee on
behalf of the State Government that this Court ought not look into the record
for satisfying itself as to whether the District Magistrate could have arrived
at the conclusion when he says he had arrived at that satisfaction only on the
grounds mentioned in the detention order. We do not think that this (1) A.I.R.
1974 S.C. 2086.
848 would be a correct approach. Where the
liberty of a subject is involved and he has been detained without trial, and a
law made pursuant to Art. 22 which provides certain safeguards. it is the duty
of this Court as the custodian and sentinel on the ever vigilant guard of the
freedom of an individual to scrutinize with due care and anxiety that this
precious right which he has under the Constitution is not in any way taken away
capriciously, arbitrarily or without any legal justification.
This Court has held that where grounds are
furnished to the detenu those grounds must not be vague and must be such as to
enable him to make a proper and effective representation against his detention.
This Court has further held that where there are several grounds, even if one
ground is vague, then it is difficult to say whether the ground which is vague
and in respect of which the detenu could not make an effective representation
did not influence the mind of the detaining authority in arriving at his
subjective satisfaction that the detenu would in future be likely to act in a
manner prejudicial to the maintenance of supplies and services essential to the
community. If the detention order is held invalid on this account, it would be
equally so in a case where there are other materials on which the detaining
authority could have been influenced in arriving at his subjective Satisfaction
but which he has not mentioned in the grounds of detention, nor communicated
them to the detenu. In such circumstances whether the other materials on record
had any effect on the mind of the detaining authority cannot be accepted solely
on his statement, because to admit that he alone has such a right-would be to
accept that the mere ipse dixit of the detaining authority would be sufficient
and cannot be looked into. There is a possibility, that certain materials on
record would disclose that the activities of the detenu are of a serious
nature, having a nexus with the object of the Act, namely, the prevention of
prejudicial acts affecting the maintenance of supplies and services essential.
to the community, and having, proximity with the time when the subjective
satisfaction forming the basis of the detention order had been arrived at. If
these elements exist, then the Court would be justified in taking the viewthat
these must have influenced the subjective satisfaction of the detaining
authority and the omission to indicate those materials to the detenu would pre-judicestrict
Magistrate must have been influenced by it and we should not, therefore, accept
his assertion at its face value ? 850 Now, the proposition can hardly be
disputed that if there is before, the District Magistrate material against the
detenu which is of a highly damaging character and having nexus and relevancy
with the, object of detention, and proximity with the time when the subjective
satisfaction forming the basis of the detention order was arrived at, it would
be legitimate for the Court to infer that such material must have influenced
the District Magistrate in arriving at his subjective satisfaction and in such
a case the Court would refuse to accept the bald statement of the District
Magistrate that he did not take such material into account and excluded it from
consideration. It is elementary that the human mind does not function in
compartments. When it receives impressions from different sources, it is the
totality. of the impressions which goes into the making of the decision and it
is not possible to analyse and dissect the impressions and predicate which
impressions went into the making of the decision and which did not. Nor is it
an easy exercise to erase the impression created by particular circumstances so
as to exclude the influence of such impression in the decision making process.
Therefore, in a case where the material before the District Magistrate is of a
character which would in all reasonable-probability be likely to influence the
decision of any reasonable human being, the Court would be most reluctant to
accept the ipse dixit of the District Magistrate that he was not so influenced
and a fortiorari, if such material is not disclosed to the detenu, the order of
detention would be vitiated, both on the ground that all the basic facts and
materials which influenced the subjective satisfaction of the District Magistrate
were not communicated to the detenu as also on the ground that the detenu was
denied an opportunity of making an effective representation against the order
of detention.
But in the present case we do not find that
there is any such infirmity vitiating the order of detention against the
petitioner. The material in the history-sheet of the petitioner which was not
disclosed to him referred to two circumstances. One was that the petitioner had
picked up the habit of committing thefts of copper wires and he committed
thefts of copper wires and the other was that there were several thefts of
transformers from villages like Betrabad, Uttar Lakshipur, Sultanganj and
Nandlalpur. So far as the first circumstance is concerned, it was merely a
generalisation based on the three incidents referred to in the grounds of
detention and it did not refer to any other incidents of theft of copper wires
besides the three enumerated in the grounds of detention. It did not,
therefore.
constitute any additional material prejudicial
to the petitioner which could be said to have gone into the formation of the
subjective satisfaction of the District Magistrate and the non-disclosure of it
to the petitioner did not have the effect of invalidating the order of
detention. The second circumstance was not directed against any activity of the
petitioner at all. It merely provided the background of the social malady which
must have been exercising the mind of the authority charged with the
administration of law and order when it said that there were several thefts of
transformers from Betrabad, Uttar Lakshipur, Sultanganj and Nandlalpur villages
and it was in the context of this back-round that 851 the three incidents
referred to in the grounds of detention were considered by the District
Magistrate. What were alleged against the petitioner were only the three
incidents set out in the grounds of detention. The thefts of transformers
referred to in the second circumstance were not attributed to the petitioner.
They merely provided the backdrop of the prevailing situation in the area and
did not constitute material prejudicial to the petitioner which ought to have
been disclosed to him. There was, therefore, no material before the District
Magistrate, other than the three incidents set out in the grounds of detention,
which went into the formation of the subjective satisfaction of the District
Magistrate and which ought, therefore, to have been communicated to the
petitioner. Ground (c) must accordingly be rejected.
That takes us to ground (d) which impugns the
order of approval passed by the State Government under section 3, subsection.
(3) of the Act. This requirement of approval of the State Government imposed by
section 3, sub-section (3) is intended to act as a check on the exercise of the
power of detention by the District Magistrate under section 3, sub-section (2)
of the Act. Therefore, a fortiorari all the basic facts and materials which
weighed with the District Magistrate in reaching his subjective satisfaction
must be placed before the State Government, so. that the State Government can,
as a, supervisory authority, decide whether the power of detention has been
properly or improperly exercised by the District Magistrate. But in, addition
to such basic facts and materials, which constitute the' grounds of detention,
the District Magistrate is also required to send to the State Government under
section 3, sub-section (3) "such other particulars as in his opinion have
a bearing on the, matter". Obviously, these "other particulars"
would be different from the basic facts and materials which constitute the
grounds of detention and would not be material which has gone into the
formation of the subjective satisfaction of the District Magistrate. If these
are any materials of such a nature as could reasonably be said to have
influenced the District Magistrate in arriving at-his subjective satisfaction,
they would be part of the grounds of detention and not "other
particulars". It is not possible to categorise precisely what these "Other
particulars" can be,, but they may include particulars relating to the
background of the circumstances in which the District Magistrate reached his
subjective satisfaction leading to the making of the order of detention or
particulars found to be administratively necessary for him to communicate to
the State Government, so that the State him in making an effective
representation. If so, the detention order on that account would be
illegal." Where the liberty of the subject is involved it is the bounden
duty of the Court to satisfy itself that all the safeguards provided by the law
have been scrupulously observed and the subject is not deprived of his personal
liberty otherwise than in accordance with law. Section 849 8(1) of the Act,
which merely re-enacts the constitutional requirements of article 22(5),
insists that all basic facts and particulars which influenced the detaining
authority in arriving at the requisite satisfaction leading to the making of
the order of detention must be communicated to the detenu, so that the detenu
may have an opportunity of making an effective representation against the order
of detention.
It is, therefore , not only the right of the
Court, but also its duty as well, to examine what are the basic facts and
materials which actually and in fact weighed with the detaining authority in
reaching the requisite satisfaction.
The judicial scrutiny cannot be foreclosed by
a mere statement of the detaining authority that it has taken into account only
certain basic facts and materials and though other basic facts and materials
were before it, it has not allowed them to influence its satisfaction. The
Court is entitled to examine the correctness of this statement and determine
for itself whether there were any other basic facts or materials, apart from
those admitted by it, which could have reasonably influenced the decision of
the detaining authority and for that purpose, the Court can certainly require
the detaining authority to produce and make available to the Court the entire
record of the case which was before it. That is the least the Court can do to
ensure observance of the requirements of law by the detaining authority.
Now, here, it was common ground that the
history-sheet of the petitioner was placed by the police authorities before the
District Magistrate and it was read by him. The history-sheet recited the
following facts and particulars :
"This does not help him in maintaining
the family and as such he became associated with the criminals viz. Kanani
Mondal of Krishnapur, Kuren Mondel of Krishnapur. He picked up the habit of
committing theft of copper wire and as such he mixed up with Mohini Ranjan Das
Nillan of Uttar Lakhipur, P.S. Koliachak and committed theft of copper wires
and there were several theft of transformers from villages like Betrabad, Uttar
Lakhipur, Suitanganj, Nandalalpur all under Kuliachak P.S.".
and then proceeded to narrate the three
incidents set out in the ,,rounds of detention as "some of his
misdeeds". The material which was before the District Magistrate, thus,
consisted of the facts and particulars extracted above from the history-sheet
in addition to the three incidents set out in the grounds of detention. This
material was not disclosed to the Petitioner as, according to the statement of
the District Magistrate in his affidavit-in-reply, he had not taken it into
account in reaching his subjective satisfaction. The question is whether this
statement made by the District Magistrate in his affidavit in-reply should be
accepted as correct. Is there anything in this material which should persuade
us to say that the District Magistrate must have been influenced by it and we
should not, therefore, accept his assertion at its face value ? 850 Now, the
proposition can hardly be disputed that if there is before, the District
Magistrate material against the detenu which is of a highly damaging character
and having nexus and relevancy with the, object of detention, and proximity
with the time when the subjective satisfaction forming the basis of the
detention order was arrived at, it would be legitimate for the Court to infer
that such material must have influenced the District Magistrate in arriving at
his subjective satisfaction and in such a case the Court would refuse to accept
the bald statement of the District Magistrate that he did not take such
material into account and excluded it from consideration. It is elementary that
the human mind does not function in compartments. When it receives impressions
from differentsources, it is the totality. of the impressions which goes into
the making of the decision and it is not possible to analyse and dissect the
impressions and predicate which impressions went into the making of the
decision and which did not. Nor is it an easy exercise to erase the impression
created by particular circumstances so as to exclude the influence of such impression
in the decision making process. Therefore, in a case where the material before
the District Magistrate is of a character which would in all
reasonable-probability be likely to influence the decision of any reasonable
human being, the Court would be most reluctant to accept the ipse dixit of the
District Magistrate that he was not so influenced and a fortiorari, if such
material is not disclosed to the detenu, the order of detention would be
vitiated, both on the ground that all the basic facts and materials which
influenced the subjective satisfaction of the District Magistrate were not
communicated to the detenu as also on the ground that the detenu was denied an
opportunity of making an effective representation against the order of
detention.
But in the present case we do not find that
there is any such infirmity vitiating the order of detention against the
petitioner. The material in the history-sheet of the petitioner which was not
disclosed to him referred to two circumstances. One was that the petitioner had
picked up the habit of committing thefts of copper wires and he committed
thefts of copper wires and the other was that there were several thefts of
transformers from villages like Betrabad, Uttar Lakshipur, Sultanganj and
Nandlalpur. So far as the first circumstance is concerned, it was merely a
generalisation based on the three incidents referred to in the grounds of
detention and it did not refer to any other incidents of theft of copper wires
besides the three enumerated in the grounds of detention. It did not,
therefore.
constitute any additional material
prejudicial to the petitioner which could be said to have gone into the
formation of the subjective satisfaction of the District Magistrate and the
non-disclosure of it to the petitioner did not have the effect of invalidating
the order of detention. The second circumstance was not directed against any
activity of the petitioner at all. It merely provided the background of the
social malady which must have been exercising the mind of the authority charged
with the administration of law and order when it said that there were several
thefts of transformers from Betrabad, Uttar Lakshipur, Sultanganj and
Nandlalpur villages and it was in the context of this back-round that 851 the
three incidents referred to in the grounds of detention were considered by the
District Magistrate. What were alleged against the petitioner were only the
three incidents set out in the grounds of detention. The thefts of transformers
referred to in the second circumstance were not attributed to the petitioner.
They merely provided the backdrop of the prevailing situation in the area and
did not constitute material prejudicial to the petitioner which ought to have
been disclosed to him. There was, therefore, no material before the District
Magistrate, other than the three incidents set out in the grounds of detention,
which went into the formation of the subjective satisfaction of the District Magistrate
and which ought, therefore, to have been communicated to the petitioner. Ground
(c) must accordingly be rejected.
That takes us to ground (d) which impugns the
order of approval passed by the State Government under section 3, subsection.
(3) of the Act. This requirement of approval of the State Government imposed by
section 3, sub-section (3) is intended to act as a check on the exercise of the
power of detention by the District Magistrate under section 3, sub-section (2)
of the Act. Therefore, a fortiorari all the basic facts and materials which
weighed with the District Magistrate in reaching his subjective satisfaction
must be placed before the State Government, so. that the State Government can,
as a, supervisory authority, decide whether the power of detention has been
properly or improperly exercised by the District Magistrate. But in, addition
to such basic facts and materials, which constitute the' grounds of detention,
the District Magistrate is also required to send to the State Government under
section 3, sub-section (3) "such other particulars as in his opinion have
a bearing on the, matter". Obviously, these "other particulars"
would be different from the basic facts and materials which constitute the
grounds of detention and would not be material which has gone into the
formation of the subjective satisfaction of the District Magistrate. If these
are any materials of such a nature as could reasonably be said to have
influenced the District Magistrate in arriving at-his subjective satisfaction,
they would be part of the grounds of detention and not "other
particulars". It is not possible to categorise precisely what these
"Other particulars" can be,, but they may include particulars
relating to the background of the circumstances in which the District
Magistrate reached his subjective satisfaction leading to the making of the
order of detention or particulars found to be administratively necessary for
him to communicate to the State Government, so that the State Government may be
able to effectively discharge its function as an overseeing superior authority
while determining whether or not to grant approval to the order of detention
made by the District Magistrate. There is nothing in Article 22(5) of the
Constitution or in any provision of the Act which requires that these
"other particulars" should be communicated to the detenu. The only
requirement of communication is in regard' to the basic facts and materials
which constitute the grounds of detention and if there are "other
particulars' besides the, grounds of detention which are communicated to the
State Government, they need not: be disclosed to the detenu. We cannot import
any requirement of dis852 closure in regard to these "other
particulars" merely on the basis of a supposed intention of the
legislature when there is nothing in the State which evinces any 'such
intention.
The petitioner, however, relied very strongly
on the following observations of this Court in Hardhan Saha's case (supra) :
"The Preventive Detention Act, 1950, was
considered by this Court and it is an established rule of this Court that a
detenu has a right to be apprised of all the materials on which an order of
detention is passed or approved.", and contended that the detenu was,
therefore, entitled to a disclosure not only of the grounds of detention but
also of "other particulars" communicated by the District Magistrate
to the State Government under section _3, sub-section (3).
We do not think the observations relied upon
by the petitioner support his contention. There can be no doubt that when the
Court made these observations, what it had in mind was the materials which
constituted the grounds of detention and not "other particulars", for
the making of the order of detention would be based on the former and not on
the latter and so also its approval by the State Government.
What the Court meant to say in making these
observations was that all the materials on which the order of detention is made
or approved, that is, the materials constituting the grounds of detention, must
be communicated to the detenu and not that " other particulars"
communicated to the State Government under section 3, sub-section (3) which do
not form the basis of the making of the order, of detention or its approval
should be disclosed to the detenu. The Court could not have intended to say
that in addition to the grounds of detention "other particulars"
mentioned in section 3, sub-section (3) should also be communicated to the
detenu when there is no requirement to that effect either in Article 22(5) of
the Constitution or in any provision of the Act. We may point out that in fact
no such question arose for decision in that case and the Court was not called
upon to decide whether "other particulars" communicated to the State
Government under section 3, sub-section (3) are required to be disclosed to the
detenu. The Court merely reiterated the well-settled proposition that the
materials constituting the grounds of detention on which the order of detention
is made by the District Magistrate and approved by the State Government must be
communicated to the detenu.
The observations made by the Court did not go
further than this and cannot be read in the manner contended on behalf of the
petitioner.
Now in the present case, as already pointed
out above, the material from the historys beet, which was not disclosed to the
petitioner, did not form part of the grounds of detention on which the order of
853 detention was made by the District Magistrate and approved by the State
Government, but merely constituted "other particulars" communicated
by the District Magistrate to the State Government under section 3, sub-section
(3). There was, therefore, no obligation on the District Magistrate or the
State Government to disclose this material to the petitioner and the
nondisclosure of which to the petitioner did not have the effect of
invalidating the approval of the State Government to the order of detention.
Ground (d) must also, therefore, fail and be rejected.
We accordingly dismiss the petition and
discharge the rule.
V.P.S.
Petition dismissed.
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