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TMI Blog1974 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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, the order of detention. Immediately on his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 opinior no sufficient cause for the detention of the person concerned, the apropriate 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (2) [1917] A.C. 260 the Court cannot be invited to consider the propriety or suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Bannerji (A.I.R. 1943 F.C. 92.) 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 ([1952] S.C.R. 135) and the Officer of the Ministry of Labour and National Service did in Simas Motor Units Ltd. v. Minister of Labour and National Service([1964] All. E.R. 201) 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 man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia, the courts stop short 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 PictureHouses Ltd. v. Wednesbury Corporation((1948) 1 K. B. 223)-words which have found approval of the House of Lords in Smith v. East Eilor Rural District Council (1956 A.C. 736) and Fswcoit Properties Ltd. v. Buckingham County Council([1961] A.C. 636)-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. ((1958) 1 W.L.R. 546 ) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ([1950] S.C.R. 88.) was that article 22 is a selfcontained Code, and therefore, a law of preventive detention does not have to satisfy- the 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,([1970] 3 S.C.R. 530) 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([1973] 1 S.C.C. 856) The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ? 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detenu. We cannot import any requirement of disclosure 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 appro ..... 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