TMI Blog1974 (12) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... , thereby jeopardising the maintenance of public order. (2) On September 7, 1973, at about 20.05 hrs., you along with your associates Kali Das alias Tenia of Jhupri at Strand Road, Calcutta, Subed Ali of 5/2 Bhukailash Road and others, all being armed with iron-rods, lathis and bombs, attacked a Watch Repairing Shop styled as M/s. Babloo Watch Repairing Co., at 52, Circular Garden Reach Road, Calcutta, by hurling bombs and damaging furniture, watches, show-cases of the said shop as Sk. Azim, the owner of this shop had earlier refused to pay you all for drinks, when the local people came to intervene, you all hurled bombs indiscriminately with a view to kill them. The incident clamped fear, frightfulness and insecurity in the minds of the public thereby affecting public order. And if left free and unfettered you are likely to continue to disturb maintenance of public order by acting in a similar manner as aforesaid. 2. The petitioner complains that the grounds of detention are vague, false, mala fide, fanciful, non-existent . It is submitted that there is no rational nexus of the grounds with permissible objects of preventive detention. It is urged that criminal offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. 4. Public Order is necessarily an elastic concept which is, in any case, wider than the security of the State - a category separated in the Act from it by the disjunctive or . It is true that, in some cases, the facts may so clearly indicate that an ordinary criminal prosecution would suffice that the necessity to order the detention of an offender for one of the objects of the Act could not be said to be reasonably made out. The case before us, however, is not one of those cases. We have to be careful to avoid substituting our own opinion about what is enough for the subjective satisfaction of the detaining authorities with which interference could be justified only if it is clear that no reasonable person could possibly be satisfied about the need to detain on the grounds given in which case the detention would be in excess of the power to detain. The required satisfaction must h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bhar did not participate in the attack on his shop on September 5, 1973 and that he did not mention his name in the first information report for that reason. 9. On November 27, 1973 the petitioner made a second representation which was received by the State Government on November 28, 1973. This was still under consideration when the petitioner filed a writ petition under Article 226 of the Constitution to the Calcutta High Court questioning his detention. 10. On March 21, 1973, the Calcutta High Court rejected the habeas corpus petition. 7. The petitioner asserts that, on the very grounds on which he was detained, one Kamal Singh alias Tiger, son of Gurmel Singh, who, like the petitioner, was alleged to be homeless in Calcutta, was detained but released after a consideration of his case by the Advisory Board. The petitioner had attached a copy of the order of the State Government, on the case of Kamal Singh which shows that, although, Kamal Singh made on representation at all to the State Government under Section 8 of the Act, yet, he was released because the Advisory Board, after considering all the materials placed before it and after hearing Kamal Singh alias Tig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s detention. In our opinion, it had rightly held that the affidavit could not vitiate the initial detention order which was passed at a time when no such information contained in an affidavit was either before the detaining authorities or placed before the Advisory Board. The petitioner had made no assertion that he did not get a personal hearing by the Advisory Board or that he did not have a full opportunity to make his representations or to put forward his case fully before the Advisory Board which could fairly and impartially consider every allegation on every question of fact. The petitioner has not alleged any hostility of the Commissioner of Police of Calcutta or of any other officer towards him. On the materials before us, we cannot be satisfied that neither the detaining authorities nor the Advisory Board had properly investigated or applied their minds to all the relevant facts relating to the petitioner's case. Nevertheless, it does appear to us, from the affidavit of the Commissioner of Police, that the State Government had perhaps not passed any order upon the second representation of the petitioner due to the belief that it may be improper to pass any order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 14 of the Act to refer a case once again to the Advisory Board for its opinion before a subsequent representation made on fresh materials by a detenu is rejected. It is true that the conditions under which a reference is made for the opinion of the Advisory Board under Section 10 of the Act cannot be repeated. It is also clear that the express and mandatory duty to refer arises only under the conditions laid down by Section 10 of the Act and there is no specific or separate provision for calling for the opinion of the Advisory Board from time to time. Nevertheless, if the power under Section 14 of the Act can be exercised in the like manner and subject to the like sanctions and conditions (if any) , to us language employed by Section 21 of the General Clauses Act, we can only interpret like manner and subjection to like conditions to mean similar and not identical manner and conditions. We think that a situation in which a power of revocation or modification of a detention order is invoked by a second or subsequent representation can, after making allowance for intervening events which cannot be wiped out of existence, be compared to and resembles a situation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched a satisfaction on every question of fact. Courts have, no doubt, to zealously guard the personal liberty of the citizen and to ensure that the case of a detenu is justly and impartially considered and dealt with the detaining authorities and the Advisory Board. But, this does not mean that they have to or can rightly and properly assume either the duties cast upon the detaining authorities and Advisory Boards by the law of preventive detention or function as courts of appeal on questions of fact. The law of preventive detention, whether we like it or not, is authorised by our Constitution presumably because it was foreseen by the Constitution-makers that there may arise occasions in the life of the nation when the need to prevent citizens from acting in ways which unlawfully subvert or disrupt the bases of an established order may outweigh the claims of personal liberty. 14. Every petitioner under Article 32 of the Constitution has to establish an infringement of a fundamental right. Hence, this Court cannot order a release from detention, upon a habeas corpus petition, until it is satisfied that a petitioner's detention is really unwarranted by law. This means that, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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