Madan Gope Vs. The State of West
Bengal [1975] INSC 30 (12 February 1975)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
CITATION: 1975 AIR 953 1975 SCR (3) 531 1975
SCC (1) 415
ACT:
Maintenance of Internal Security Act, 1971,
s. 3(1)--Order of detention for maintenance of public order--If can be
justified as for maintenance of essential supplies--'Smuggling' if can
prejudice public order--'Public Order', scope of.
HEADNOTE:
The-petitioner was detained by an order made
under s. 3 of the Maintenance of Internal Security Act, 1971, to prevent him
from acting in any manner prejudicial to the maintenance of public order, on
two grounds. The activity which constituted the substratum of the first ground
of detention was a case of inter-state smuggling of essential commodities. The
other facts mentioned, in addition to smuggling in the ground, are (a) that the
detenu and his associates had threatened the Home Guards who arrested them, and
snatched away the seized commodities from the custody of the Home Guards. and,
(b) that his activity came within the purview of ss. 143/185/332/506, I.P.C.
and s. 7(i) (a) (ii) of Act X of 1955.
Allowing the petition under Art. 32
challenging the order of detention,
HELD: (1) Section 3(1)(a) of the Act confers
power on the authority for detain a person if it is satisfied that such
detention is necessary to prevent him from acting in a 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. The power can be exercised only on, one or more of the grounds
enumerated, and if the exercise of the power is not, on the face of the order,
correlated to any of these grounds or concerns activities which are not germane
to any of those grounds, such exercise would be vitiated for lack of
jurisdiction.
Further the satisfaction spoken of in s. 3(i)
which is the sine qua non for the exercise of power, is the subjective
satisfaction of the authority which cannot be tested in court by objective
standards. Ordinarily, therefore, the court cannot go behind the satisfaction
expressed on the face of the order. Thus, where the order ex facie is made with
a view to prevent an act prejudicial to the maintenance of public order, the
detaining authority cannot be permitted 'to show that in fact the order was
made to prevent an act prejudiced to the maintenance of supplies and services
essential to the life of the community. [534B-G] (2) Ordinarily, smuggling is a
calendestine activity and its concept is repugnant to what is public. But cases
are conceivable where the act of smuggling may be accompanied by such violence
or disorder that it throws out of gear the even tempo of the life of the
community in the locality or disturbs public tranquility. [535F-H] In the
present case, there is no mention that the detenu or his associates were armed
with any deadly weapons, or that their acts had caused panic and terror among
the people of the locality. The incident was confined to the detenu and his associates
on one hand and the home guards who checked them on the other. it was not an
activity which was prejudicial to the maintenance of public order. The first
ground of detention had, therefore, no real nexus with the maintenance of
public order. [536B-C] (3) The activity could at the most be said to be an
activity affecting law and order. The order cannot be justified on the ground
that the activity was prejudicial to the maintenance of supplies and services
essential to the community, because, the Court cannot go behind the subjective
satisfaction of the detaining authority as expressed in the detention order and
permit it to justify its order on a ground different from the one mentioned on
the face of the order. The fact that the activities of the detenu constituted
the various offences mentioned in the order was only a conclusion drawn by the
authority. [536A-B, C-E] 532 (4) It could not be said that whenever any act is
accompanied by show of force or threat to any public servant entrusted with the
maintenance of law and order, it must necessarily fall within the category of
art act prejudicial to the maintenance of public order. In every case the broad
test to be applied is whether the act was of such a magnitude and gravity that
it had disturbed the even tempo of the life of the community in the area and
that, essentially, is a question of fact depending on the circumstances of each
case. [536F-G] Indradeo Mahato v. State of West Bengal, AIR 1973 SCC 4; Dr.
Ram Manohar Lohia v. State of Bihar and Ors.
[1966] 1, SCR 709 and Ram Ranjan Chatterjee v. The State of West Bengal.
Writ Petition No. 476/74 decided on 22-1-75
referred to.
(5) If one of the several grounds of
detention is found to be irrelevant, the order of detention shall stand
vitiated, because, it cannot reasonably by predicated to what extent the
irrelevant ground had influenced the subjective satisfaction of the detaining
authority. [536E-F]
ORIGINAL JURISDICTION : Writ Petition No. 559
of 1974.
Petition Under Article 32 of the Constitution
Gautwn Goswami, for the petitioner.
G. S. Chatterjee, for the respondent.
The Judgment of the Court was delivered by
SARKARIA, J.-Madan Gope, petitioner challenges the validity of the order of his
detention made by the District Magistrate, Purulia under s. 3 of the Maintenance
of Internal Security Act, 1971. The order states that the detention has been
made to prevent him from acting in any manner prejudicial to the maintenance of
public order.
The impugned order is founded on two grounds
which run as under :
" 1. On 1-1 1-73 at about 09.00 hrs. you
along with your associates attacked Home Guard No.
900 Aswini Mohanti and 3 others of Layadi
Home Guard Camp who were on cordoning patrol near Kashipur village, P.S..
Joypur close to Bihar border when they arrested you with rice, Dalda, Kerosene
Oil, wheat, which were being carried by you and threatened them with death and
snatched away the seized commodities from their custody.
In consequence of your said activity which
comes within the purview of section 143/186/332/506, I.P.C. and 7 (i) (a) (ii)
of Act X of 1955, the maintenance of Public ,Order was disturbed.
The said activity thus attract sub-clause
(ii) of Clause (i) of sub-section(1) of section 3 of the Maintenance of
Internal Security Act, 1971 (Act 26 of 1971).
2. On 6-11-73 at about 19.00 hours, you along
with your associates attacked the investigating Police Officer and his Police
Party with deadly weapons and attempted to resist your arrest while they went
to Sidhi village under Joypur P.S..
533 District Purulia to investigate a case.
You and one of your associates were arrested with deadly weapons.
These violent and dangerous activities on
your part created terror and panic amongst the local people who were over-awed
and thus you have disturbed Public Order.
In consequence of your said activity which
comes within the purview of sections 148/149, 307/5o6/186 I.P.C., the
maintenance of public order was disturbed.
The said activities thus attract Sub-Cause
(ii) of Clause (a) of Sub-section (1) of Section 3 of the Maintenance of
Internal Security Act, 1971 (Act 26 of 1971)." The return has been filed by
the, District Magistrate who had passed the impugned order in which it is
averred :
"I say that I made the detention order
after being satisfied from the materials on records in support of the grounds
of detention in question that with a view to preventing the said detenu from
acting in any manner prejudicial to the maintenance of Public Order, it was
necessary to detain him.... I further say that the grounds furnished to the
said detenu are the grounds on which I based my satisfaction for making the order
of detention taking those grounds separately and collectively. . . .
The main contention of Shri Goswami, learned
Counsel appearing as amicus curiae for the petitioner, is that neither of the
grounds of detention was relevant to Public Order. According to Counsel these
incidents, at the most, affect 'law and order'. In support of his contention he
has referred to Bakhtawar Singh v. The State;(1) Man Singh v. State;(2) Arun
Ghosh v. State of W. Bengal(3) Kanu Biswas v. The State of West Bengal(3); Kishori
Mohan Bera v. The State of West Bengal(3) and Shyamlal Chakravarty v.
Commissioner of Police, Calcutta and another(1).
In reply Mr. Chatterjee, learned Counsel for
the State submits that in these criminal incidents, the petitioner had
threatened and tried to obstruct public servants in the discharge of their
duty. When-aver a criminal incident is accompanied by such threat or
resistance, proceeds the argument, it raises a problem, of Public Order as
distinguished from a simple problem of law and order.
Reference in this connection has been made to
Kanu Biswas v. State of West Bengal (supra); Babul Mitra v. State of West
Bengal(7) and Indradeo Mahato v. State of West Bengal(8).
(1) AIR 951 Punjab 157.
(2) AIR 1953 Pepsu 16.
(3) [1970] 3, S.C.R. 288.
(4) AIR 1972 S.C. 1656;
(5) AIR 1972 SC 1749.
(6) AIR 1970 SC 269.
(7) AIR 1973 SC 197.
(8) AIR 1973 SCC 4.
534 Times out of number, it has been
emphasized by this Court that since the Act gives extraordinary powers to the
Executive to detain a person without trial, meticulous compliance with the
letter and requirements of law is essential for the validity of an order of
detention made there under.
Section 3 (1 ) (a) of the Act confers power
on the authority to detain a person if it is satisfied that such detention is
necessary to prevent him from acting in any manner prejudicial to :
(i) the defence of India, the, relation of
India with foreign powers of 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.
Clause (b) of s. 3 (1 ) applies to a
foreigner and is not relevant for our purpose.
It will be seen that the power can be
exercised only on one or more of the grounds enumerated above. If the exercise
of the power is not on the face of the order correlated to any of these grounds
or concerns activities, which are not germane to any of these grounds, such
exercise would be vitiated for lack of jurisdiction. Further, the satisfaction
spoken of in s. 3 (1) which is the sine qua non to the exercise of the power is
the subjective satisfaction of the authority which cannot be tested in court
by.
objective standards. Ordinarily, therefore,
the court cannot go behind the satisfaction expressed on the face of the order.
As pointed out by this Court in Dr. Ram Manohar Lohia v. State of Bihar and
Ors. (1) "when an order on the face of it, is not in terms of the rule, a
court cannot equally enter into an investigation whether the order of detention
was in fact, that is to say irrespective of what is stated in it, in terms of
the rule". Thus where the order ex facie is made with a view to prevent an
act prejudicial to the maintenance of Public Order, the detaining authority
cannot be permitted to show that in fact the order was made to prevent an act
prejudicial to the maintenance of supplies and services essential to the life
of the community.
The distinction between 'Public Order' and
'Law and Order' has frequently come up for consideration before this Court.
Recently, in Ram Ranjan Chatterjee v. The
State of West Bengal, (2) this Court explained the distinction between the two,
thus :
"it may be remembered that
qualitatively, the acts which affect 'law and order' are not different from the
acts which affect 'public order'. Indeed a state of peace or, orderly
tranquility which prevails as a result of the observance or enforcement of
internal laws and regulations by the Government, is a (1) [1966] 1 SCR 709.
(2) Writ Petition No. 476/74 decided on
22-1-75.
535 feature common to the concepts of 'law
and order' and 'public order'. Every kind of disorder or contravention of law
affects that orderly tranquility. The distinction between the areas of 'law and
order' and 'public order' as pointed by this Court in Arun Ghosh's case (supra)
'.'is one of degree and extent of the reach of the act in question on
society". it is the potentiality of the act to disturb the even tempo of
the life of the community which makes it prejudicial to the maintenance of
public order. If the contravention in its effect is confined only to a few
individuals, directly involved, as distinguished from a wider spectrum of thepublic,
it would raise a, problem of law and order only. These concentric concepts of
'law and order' and 'public order' may have a common epicenter', but it is the
length, magnitude and intensity of the terror-wave unleashed by a particular
eruption of disorder that. helps distinguished it as an act affecting 'public
order' from that concerning "law and order".
We may further, observe that the various
grounds indicated in clauses (i), (ii) and (iii) of Section 3(1) (a) are not
always mutually exclusive. Nor can the prejudicial acts be categorized into
water-tight compartments. As pointed out by this Court in Indradeo Mahato's
case (supra) "Similar acts in different situations may give rise to
different problems : in one set of circumstances an act may pose only a law and
order problem whereas in another it may generate deep and widespread vibrations
having serious enough impact on the civilized peaceabiding society so as to
affect public order, one has to weigh the degree and sweep of the harm the act
in question is capable of in its context. Every case has therefore, to be
considered on its own facts and circumstances." Considered in the light of
the above principles, it is quite clear that the activity which constitutes the
substratum of the first ground of detention, is manifestly a case of interstate
smuggling or attempt to smuggle essential commodities such as rice, Dalda,
Kerosene oil and wheat.
Smuggling, ordinarily, is a calendestine
activity. Broadly speaking, its concept is repugnant to what is 'public'. As
rightly observed by Falshaw J. in Bakhtawar Singh v. The State(1) : "Prima
facie there is no connection between smuggling which is essentially a secret
operation and the maintenance of public order in which the operative word is
'public"'. We will, however, hasten to add that this broad proposition as
to the distinction between an act of 'smuggling' and an act affecting 'public
order' is not an abstract or absolute proposition of law. Cases are conceivable
where the act of smuggling may be accompanied by such violence and disorder
that it throw,% out of gear the even tempo of the life of the community in the
locality or disturbs public tranquility. The broad distinction between an act
of smuggling and one Prejudicial to 'Public Order' drawn by us is helpful only
for the purpose of deter(1) AIR 1951 Simla 151.
3-470SCI/75 536 mining whether in the
circumstances of the present case, the smuggling activity attributed to the
detenu, as incorporated in his first ground of detention was germane to the
maintenance of public order, for achieving which the preventive detention in
question has been professedly made In our opinion the answer to this question
must be in the negative. The only fact which has been mentioned in addition to
the smuggling of some essential commodities in that ground is that the detenu
and his associates had threatened the Home-Guards and snatched away the seized
commodities from their custody. Further fact mentioned is that this activity
comes within the purview of Ss.
143/186/332/506 I.P.C. and 7(i) (a) (ii) of
Act X of 1955.
This latter fact to the effect that such and such
offences were committed was only a conclusion drawn by the authority.
There is absolutely no mention that any was
caused in the locality Nor is it alleged that the detenu or his associates were
armed with any deadly weapons, or that their acts had caused panic and terror
among the people of the locality. The incident was confined to the detenu and
his associates on one handand the, Home-guards who checked them on the other.
Clearly therefore, it was nit an activity which was prejudicial to the maintenance
of Public Order.
At the most, it could be said to be an
activity affecting law and order Nor can the order be justified on the ground
that this activity was manifestly prejudicial to the maintenance of supplies
and services essential to the community. We have stated earlier that the court
cannot go behind the subjective satisfaction of the detaining authority as
expressed in the detention order and permit it to justify its order on a ground
different from the one mentioned on the face of the order.
We are therefore of the opinion that first
ground of detention had no Teal nexus with the maintenance of Public Order. In
view of this finding, it is not necessary for us to consider whether the
criminal act incorporated in the second ground of detention falls within the
category of an ad affecting Public Order or one concerning law and order.
If one out of several grounds of detention is
found to be irrelevant, the order of detention shall stand vitiated.
The reason is that in such cases, it cannot
be reasonably predicated as to what extent the irrelevant ground 'had
influenced the subjective satisfaction of the detaining authority.
We have gone through the cases cited by Mr.
Chatterjee. It has not been laid down therein as a proposition of law that whenever
any act is accompanied by show of force or threat to a public servant entrusted
with the maintenance of law and order, it must necessarily fall within the
category of an act prejudicial to the maintenance of Public Order. Even in
those cases, the broad test applied was, whether the act was of such a
magnitude and gravity that it had disturbed the even tempo of the life of the
community in the area.
Indeed, this is essentially a question of
fact depending on the circumstances of each case.
in the result, we allow this petition, quash
the impugned order of detention, make the rule absolute and direct that the
petitioner be released forthwith.
V.P.S. Petition allowed.
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