Tulshi Rabidas Vs. The State of West
Bengal [1975] INSC 17 (27 January 1975)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
GOSWAMI, P.K.
SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 638 1975 SCR (3) 401 1975
SCC (3) 845
ACT:
Maintenance of Internal Security Act, Sec.
3--Subjective satisfaction, meaning of--Some evidence gathered during
investigation which in some manner roped in the detenu, if sufficient.
HEADNOTE:
In pursuance of the order of detention made
by the District Magistrate, West Dinajpur, on March 19, 1973, the petitioner
was taken into custody. The order of detention was intended to prevent the
petitioner from acting in a manner prejudicial to the maintenance of supplies
essential to the community. The first ground related to the arrest of the petitioner
and his associates while they were smuggling 65 KGs. of paddy from West
Dinajpur District to Malda District.
On being challenged by the patrol party he
could not produce any valid document in support of his carrying paddy at West
Dinajpur-Malda districts border. The second ground related to the smuggling of
paddy on 11/12-3-73 mid-night in 6 bullock carts by the petitioner and his
associates from West Dinajpur District to Malda District. On being challenged
by the Resistance Group Members, the petitioner and his associates threatened
to kill them and therefore, being thus terrorised, they dared not apprehend the
petitioner and his associates.
Dismissing the Writ Petition challenging the
order of detention,
HELD : (i) The counter affidavit disclosed that
a criminal case had been instituted against the petitioner and his associates
for offences of illegal transport of paddy, for resistance to the police,
officers taking them into custody and for escape from lawful custody. It
further stated that 'due to dangerous and desperate nature of the detenu and
his associates' the witness declined to give evidence in open court for fear of
their lives and that the final report was submitted in the said case. This
means that the charge- sheet disclosed sufficient evidence to go before the
Court and it was not a case of absence of reasonable grounds of suspicion.
[403H-404B] (ii) So far as the second ground is concerned, the absence of
material to show that a case has been charge-sheeted, in court is not
destructive of the detention order provided there is some material for
subjective satisfaction of the authority concerned. Whether the investigation
was conducted properly or not, whether the District Magistrate should have
pinned his faith on the- result of investigation and like questions are not for
the court to consider. But the minimum which must be placed before the court is
that there was some evidence gathered during investigation which, in some
manner, roped in the petitioner. In the present case, there is some evidence
for the District Magistrate to act. [404E-H] (iii) Rhetorical assertions that
the Presidential proclamation of emergency has outlived its- reality and must
be annulled. cannot be transformed into proof. The reasons given by this Court
in Bhuth Nath's case A.I.R. 1974 S.C.
806, holds good here too. [405E-F] Samsher
Singh's case, A.I.R. 1974 S.C. 2192, referred to.
ORIGINAL JURISDICTION : Writ Petition No. 349
of 1974.
Petition under Art. 32 of the Constitution of
India.
H. S. Marwah, for the petitioner.
Sukumar Ghosh and G. S. Chatterjee, for the
respondent.
402 The Judgment of the Court was delivered
by KRISHNA IYFR, J.-The case of the petitioner, a detenu in West Bengal, has
been presented at persistent length by Sri Marwah, appearing as amicus curiae,
but some of the many contentions pressed by 'him merit serious notice which
alone we propose to deal with.
Now, the facts to the extent relevant. The
order for detention was made by the, District Magistrate, West Dinajpur, on
March 19, 1973 pursuant to which he was taken into custody nine- days later.
The calendar of 'statutory' events discloses no infirmity but the content of
the grounds given by the District Magistrate and the order of approval made by
the State Government have been the focal points of attack. Straightaway we
proceed to set out the two criminal involvements of the petitioner which
allegedly persuaded the authority to direct detention with a view, hereafter,
to inhibit this activities prejudicial to supplies essential to the community.
They are :
"(1) That on 6-3-73 at about 01.30 hours
you along with your associate Mangal Soran of Gopalpur, P. S. Bangshihari,
Dist. West Dinajpur were arrested with 65 kgs. of paddy in gunny bags within 1
K.M. of West Dinajpur- Malda Border at Kandarpur, P. S. Banshihari, Dist. West
Dinajpur, by the patrol party of Bagduar A/S Camp, P. S. Bangshihari, Dist.
Dinajpur while you and your said associates
were smuggling the said quantity of paddy from West Dinajpur district to Malda
district.
Being challenged by the patrol party you
could not produce any valid document in support of your carrying paddy at West
Dinajpur-Malda districts border. This activity of yours created scarcity of
paddy within the juris- diction of Bangshihari P. S.. Elaka of West Dinajpur
district and the price index of paddy soared high and high beyond the
purchasing capacity of the common people of that area.
Thus you acted in a manner prejudicial to the
maintenance of supplies essential to the community. - (2) That on 11/12/3-73
mid-night you along with your associates were found smuggling paddy in 6
bullock carts from Rakhalpukur, P.S. Banshihari, Dist. West Dinajpur to Malda
district by some members of the local Resistance group, namely Kamal Chandra
Roy of Deogaon, Narayan Chandra Sarkar of Mirshati, both of P.S. Banshihari,
Dist. West Dinajpur and others. Being challenged by the Said Resistance Group
Members, you and your associates threatened to kill them and being thus
terrorised the Resistance Group Members dared not apprehend you and your
associates These activities of yours are mainly responsible for the rise in
price of paddy and rice within Banshihari P.S. jurisdiction of West Dinajpur
district. By such illegal act of smuggling of paddy you and your associates
created scarcity of paddy and rice in Banshihari P.S. jurisdiction, Dist. West
Dinajpur and thereby acted in a manner prejudicial to the maintenance of
supplies essential to the community.
4 03 From the above facts it is clear that
you and your associates are acting in a manner prejudicial to the maintenance
of supplies and services essential to the community- The past is the precursor
and predictor of the future and this commonsense canon is usually-and in this
case-applied by the authority to foretell the danger to the services and
supplies essential to the community by repetitive criminal activity of the
prospective detenu. Once the officer entrusted with the power reads the omens
with due care, the court cannot reread for its own satisfaction. But if the authority
puts forward grounds so grotesque that he goofs the law, as it were, the Court
will invalidate, the order for the well-worn reason that no rational being
would have formed the satisfaction which is a sine qua non for the detention.
Supra-rational hunch or infra-rational instinct are not legal processes in this
humdrum world and we have, as sentinels, the duty to scan the basis of the
subjective satisfaction of the authority to check upon his minimal aspect of,
rational belief.
The grounds, as already set out, have to be
considered to appraise the claim of rational belief as against the charge of a
'cyclostyled' satisfaction. The crime of March 6, 1973, committed past
mid-night by the petitioner and his associates, is tell-tale in 'certain
aspects. It relates to removal of paddy in gunny bags. The smugglers were
arrested by the patrol party of Bagduar anti-,smuggling camp. The culprits
could not produce any permit in support of their transport of the paddy. We
have no doubt that smugglers _disrupt supplies and services essential to the
community and a smuggler of today who gets away with it is likely to be a
smuggler of tomorrow, the habit of getting rich quick dying hard. In this
context, we have the counter-affidavit which runs thus:
"It appears from the report submitted by
I.O.
of the case that the petitioner was
intimately connected with the incidents mentioned in the grounds of detention.
I deny that the grounds of detention are false and detention of the petitioner
is illegal. It further appears from the report of the said I.O. that with
reference to the first incident a Cr. Case being Banshihari P. case No. 6 dated
6.3.73 was instituted against the petitioner and his associates under Section 7
(1) of the Essential Commodities Act and Section 224/225 of I.P.C. but as due
to dangerous and desperate nature of the detenu and his associates the
witnesses declined to give evi- dence against-them in open court for fear of
their lives and final report was submitted in the said case." The
inevitable inference from this statement, understood in the background of the
'grounds,' is that a criminal case had been instituted against the petitioner
and his associates for offences of illegal transport of paddy, for resistance
to the police officers taking them into custody and for escape from lawful
custody. Sections 224 and 225 I.P.C.
clearly indicate this development. What
follows is signi- ficant. The Deputy Secretary in the Home Department (who has
sworn to the counter-affidavit), by a perusal of the papers, states on 404 oath
that 'due to dangerous and desperate nature of the detenu and his associates'
the witnesses declined to give evidence in open court for fear of their lives
and the final report was submitted in the said case.
The price that subjective satisfaction, as
validating an order and excluding judicial scrutiny, has to pay in a court, is
that if one of many grounds relied on by the authority goes, undeniably the
whole order falls, even though if it were a case of objective satisfaction the
court might have attempted to sustain the order on the surviving grounds. It is
argued that for this reason, the detention order in the present case must fail.
We have to be very careful where economic
offenders injure the soft underside of the community's distribution and
consumption system in respect of essential commodities.
Viewed with meticulous care, we see from the
affidavit filed on behalf of the State that a criminal case had been actually
instituted against the petitioner under s.7(1) of the Essential Commodities
Act. This means that the charge- sheet disclosed sufficient evidence to go
before a court and it was lot a case of absence of reasonable grounds of
suspicion. The possible argument that the affidavit had left vague the
likelihood of a report under S. 169 Cr.P.C.
based on no evidence is thus repelled. The
order is not vulnerable on this score.
So far as the second episode is concerned,
the attack made by counsel is that the counter-affidavit omits to mention
anything about the criminal case that must have followed.
True, there should have been a better
affidavit, but the absence of material to show that a case has been charge-
sheeted in court is not destructive of the detention order provided there is
some material for the subjective satisfaction of the authority concerned. In
the present case, on the police report regarding the second incident, which is
a serious one, the authority might well have come to an inference of
prejudicial activity. We must express our surprise at the silence in the counter-affidavit
about the action taken in court having regard to the fact that the offence
itself is one of transport by a 'caravan' of bullock carts. Even so, we are
unable- to void the order on this score, especially because the District
Magistrate may well have acted on the police, report. Whether the investigation
was conducted properly or not, whether the District Magistrate should have
pinned his faith on the result of the investigation and like questions, are not
for the Court to consider. But the minimum which must be placed before the
Court is that there was some evidence gathered during investigation which, in
some manner, roped in the petitioner. We are prepared to hold that there is
some evidence for the District Magistrate to act and there we pause.
We must frankly admit that the nature of the
economic offence has had some impact on our mind in examining the order and the
source material sedulously. The facts are peculiar and other facts might have
led to an opposite inference. The caution that absentminded orders of detention
unwittingly suffer electrocution in court 405 should however not be forgotten,
notwithstanding the survival of the order in this case.
The country which faces food scarcity has
resorted to arming the government and its officers with special powers under
the MISA. They are intended to be exercised whenever occasion arises, but
exercised with care. In the present case we have had to make up for
deficiencies in the counter- affidavit by a closer examination of materials,
for reasons already set out.
We should impress upon government and its-
lesser officials, armed with extraordinary powers, to use them for the salutary
purpose of the protection of the community in its sensitive area of food and
like essential articles. If there is failure in this area, the officers must be
taken to task, for the victim is the country and the community. The release of
a detenu because the order has been passed recklessly, is a matter which should
be of concern to the State. If the detenu is a dangerous criminal who disrupts
supplies and services essential to the life of the community, release of the
man caused by absence of nexus for which the real though invisible
responsibility falls on the officer, must be looked into at higher levels, so that
the purposes of the MISA are not defeated by the neglect of legality or
indifference in operation from within. Official vigilance is the price of
social security and MISA is no talisman. In the present case, for the special
reasons set out above, the order survives judicial scrutiny.
Shri Marwah opened vigorously with the
submission that the Presidential proclamation of emergency has outlived its
reality and must be annulled by this Court. He marshalled what he variously
called ' notorious and 'historical' facts to establish that normalcy has
prevailed in the land for some time and the impenetrable secrecy of subjective
satisfaction' no longer remained a sustainable proposition after Samsher
Singh's Case(1). If the Emergency was extinguished judicially and
retroactively, the Defence of India Act would have expired and the maximum
period of detention itself would have ended, resulting in a release of the
petitioner. For lovers of civil liberties a penumbra of Emergency is anathema
but the preliminary question in a Court is whether the basic facts and
necessary parties are on record at all. Rhetorical assertions cannot be
transformed into proof and absent affected parties, the Court's jurisdiction
cannot be activated. Further, adjournment for this purpose at this late stage
being impermissible, we have to negative the plea. Moreover, the reasons given
by this Court in Bhut Nath's Case (2) hold good here too. We reject the belated
(1) AIR 1974 SC 2192; (2) A.I.R. 1974 S.C. 806.
406 plea, hopeful that in the event of a
future ruling of this Court pronouncing the, state of emergency long ago
legally dead the petitioner will have the benefit of it at the hands of the
State. Observing silence for the nonce on the merits of Shri Marwah's
undocumented contention, we reach the conclusion that the petition is liable to
be dismissed. We however record appreciation of the painstaking services of Mr.
Marwah with a sense of involvement in the case, though appearing as amicus
curiae.
The petition is and the rule discharged.
V.M.K. Petition dismissed.
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