TMI Blog1974 (3) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... he arguments. The Commissioner of Police, Calcutta, passed the initial order of detention dated July 19, 1973 on the petitioner, Golam Hussain alias Gama, under S. 3(1) (a) (ii) read with sub-section (2) of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) (hereinafter referred to as the Act ). The grounds which induced the detaining authority to pass the order were communicated the same day. They have been set out by the State as annexure to the affidavit filed in opposition to the petition and read thus On 8-10-72 at about 22-25 hrs., you along with your associates Achche Lal Show of 1, Manickotolla Bazar Lane, Satya Narayan Jaiswal of 123/2, Acharya Prafulla in Chandra Road, and others, all being armed with bombs, sodawater bottles created a great disturbance of public order on Gouri Sankar Lane in front of premises No. 8 by hurling bombs indiscriminately with a view to attack one Jiban Paul of 8. Gouri Shankar Lane and his group in retaliation to an earlier quarrel that took place with the said Jiban Paul at 8, Gouri Sankar Lane with your associates Satya Narayan Jaiswal and others. The incident terrorised the locality and threw out of gear the normal life str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit that there were cases connected with ,he incidents of October 8th and November 9th, but the detenu could not be arrested until July 4, 1973. It is not denied that the petitioner s name was not in the first information report, but he was apprehended later on the basis of evidence gathered during the investigation of the criminal case. The commissioner admits that the detenu was discharged by the, Court as no witness dared to depose against the detenu in open court. According to him the said order of discharge was made on the prayer of the police on July 19, 1973, and thereafter the petitioner was Preventively detained. Could such an order be castigated as malafide and oblique resort to the inscrutable order of detention when the prospects in the criminal case became bleak ? This charge has been repudiated by the Commissioner on oath and we are not able to hold with the petitioner that merely because the detaining authority has chosen to pass the order on the discharge of the petitioner by the court for want of evidence, the order is bad in law. , The branch of jurisprudence bearing on prohibitory detention has been crystallised by now and it is no longer a valid contention, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumstances of each case. If the detaining authority takes the chance of conviction and, when the court verdict goes against it, falls back on its detention power to punish one whom the court would not convict, it is an abuse and virtual nullification of the judicial process. But if honestly finding a dangerous person getting away with it by overawing witnesses or concealing the commission cleverly an authority thinks on the material before him that there is likelihood of and need to interdict public disorder at his instance he may validly direct detention. The distinction is fine but real. In the present case, the acts ere serious, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation of emergency and a period of six months thereafter. Section 13 of the MISA, as amended, thus provided that the maximum period of detention under the Act shall be twelve months from the date of detention or until the expiry of a period of six months after the cessation of the proclamation of emergency, whichever is later. The Court recently dismissed a similar argument in these words in Suna Ullah v. State of J K (A.I.R. 1972 S.C. 2431; 2433) : It is urged that the failure of the State Government to specify the period of detention introduces an infirmity in the detention of the petitioner. This contention, in our opinion, is without any force. According to sub-section (1) of Section 12 of the Act, in any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Section 13 of the Act specifies the maximum period of detention. According to that section the maximum period for which a person may be detained in pursuance of any detention order, which has been confirmed under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir construction of the section.Das, J., as he then was, read the section to imply no obligation towrite into the order the duration, even though it may be desirable.The learned Judge observed : It is said that the section should be construed irrespective Of whether it occurs in a temporary statute or a permanent one, and it is urged that if the statute were a permanent one the section on the aforesaid interpretation, would have permitted an indefinite detention. The answer is given by Mahajan J., in the following passage in his judgment in S. Krishnan v The State of Madras (supra) at page 639 with which concurred([1951] S.C.R. 621; 629.) It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them. The detention of the petitioners therefore is bound to come to an end auto matically with the life of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the detenu. That, I apprehend, will do no good to the detenu. In any event, the considerations of hardship urged upon us may make it desirable that a period of detention should be fixed but this cannot alter the plain meaning of the language of the section : Patanjali Sastri, C. J., concurred. However, Mukherjea J. struck a different note The question now is whether the omission to state the period of further detention while confirming the detention order under section II (1) of the Preventive Detention Act makes the detention illegal ? The point is not free from doubt, but having regard to the fact that the new Preventive Detention Act is a temporary statute which was to be in force only up to the 1st of April, 1952, and. has only been recently extended to a further period of six months and no detention under the Act can continue after the date of expiry of the Act, I am in-.limed to hold that non-specification of the further period in an order under section 11(1) of the Act does not make the order of detention a nullity. If no period is mentioned, the order might be taken to imply that it would continue upto the date of the expiration of the Act itself when all detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal liberty is-largely the history of insistence on observance of procedure . (1) W. P. No, 1496 of 1973; judgment dated October 11, 1973.-[1974] I SCC 103, 114. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established bylaw. The need today for maintenance of supplies and services essential to the community cannot be over-emphasized. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of good society. There are other values in a society. Our country is taking singular pride in the democratic ideals in personal liberty. It would indeed be ironic if, in the name of social security, we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values. For, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be its impact o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic order although the motivation may be against a particular private individual. The nature of the act the circumstances of its commission the impact on people around and such like factors constitute the pathology of public disorder. We cannot isolate the act from its public setting or analyse its molecules as in a laboratory but take its total effect on the flow of orderly life. It may be a question of the degree and quality of the activity of the sensitivity of the situation and the psychic response of the involved people. To dissect further is to defeat the purpose of social defence which is the paramount purpose of preventive detention. Another argument, rather flimsy, was made that a corrigendum reading public order in the place of police order was not communicated to the detenu. It is not so and merits no consideration. One or two other points, too trivial to be seriously noticed were also mentioned but we ignore them. Basically we must realise the unpleasant truth that the new jurisdiction of preventive detention by executive fiat founded on subjective satisfaction and jejune judicial protection is an erosion of a great right. We may repeat what this Court in a differ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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