TMI Blog1968 (11) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... October 18, 1968, the cases as regards petitioners nos. 11, 14, 15, 18, 23, 24, 25, 27 to 30 were dismissed as they were reported to have been released. As regards petitioner no. 5, Subhas Chandra Bose alias Kanta Bose, the order of detention was made on January 20, 1968 by the District Magistrate, Howrah and reads as follows: No. 202/C Dated, Howrah, the 20th January, 1968 WHEREAS I am satisfied with respect to the person known as Shri Kanta Bose alias Subhas Chandra Bose son of Shri Sishir Kumar Bose of 26, Nilmoni Mallick Lane, P.S. and Distt Howrah, that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it is necessary so to do , therefore, in exercise of the powers conferred by Section 3(2) of the Preventive Detention Act, 1950 (Act IV of 1950), I make this order directing that the said Shri Kanta Bose alias Subhas Chandra Bose be detained. Given under my hand and seal of office. Sd/- D.C. Mookherjee District Magistrate Howrah. On the same date' the following grounds of detention were communicated to the detenu: You are being detained in pursuance of a detention order made under sub section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentation to the State Government. Sd/-D.C. Mookerjee District Magistrate Howrah. On March 19, 1968 the Advisory Board made a report under s. 10 of the Act stating that there was sufficient cause for detention of Sri Kanta Bose alias Subhas Ch. Bose. On March 30, 1968 the Governor of West Bengal confirmed the detention order under s. 11 (1) of the Act. Section 3 of the Act provides: 3. (1) The Central Government or the State Government may-- (a) If satisfied with respect to any person that with a view to preventing him from acting in any 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 or supplies and a services essential to the community, or (b) if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act 1946 (XXXI of 1946), that with a view to regulating his continued presence-in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such persons be detained. (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would not be open to the detenu to ask the Court to consider the question as to whether the said satisfaction of the detaining authority can be justified by the application of objective tests. It would not be open, for instance, to the detenu to contend that the grounds supplied to him do not necessarily or reasonably lead to the conclusion that if he is not detained, he would indulge in prejudicial activities. The reasonableness of the satisfaction of the detaining authority cannot be questioned in a Court of law; the adequacy of the material on which the said satisfaction purports to rest also cannot be examined in a Court of law. That is the effect of the true legal position in regard to the satisfaction contemplated by s. 3(1)(a) of the Act--(See the decision of this Court in The State of Bombay v. Atma Ram Sridhar Vaidya([1951] S.C.R. 167). But there is no doubt that if any of the grounds furnished to the detenu are found to be irrelevant while considering the application of cls. (i) to (iii) of s. 3(1)(a) and in that sense arc foreign to the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge 'and the detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act. A District Magistrate is therefore entitled to take action under s. 3 (1 ) of the Act to prevent subversion of public order but not in aid of maintenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an 'act may affect public order but not security of the State. By using the expression 'maintenance of law and order' the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules. The order no doubt mentioned another ground of detention, namely, the prevention of acts prejudicial to public safety, and in so far as 'it did so, it was clearly within the rule. But the order of detention must be held to be illegal, though it mentioned a ground on which a legal order of detention could have been based, because it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of his subjective satisfaction. It was accordingly held that the order of detention made by the District Magistrate was invalid and the petitioner should be set at liberty. In our opinion, the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuary 20, 1968 against petitioner Subhas Chandra Bose alias Kanta Bose and the consequent order made by the Governor dated March 30, 1968 confirming the order of detention under s. 11 (1 ) of the Act must be declared to be illegal and accordingly the petitioner. Subhas Chandra Bose alias Kanta Bose is entitled to be released from custody forthwith. In the case of petitioner 2, Sukumar Chaudhury, no. 4, Tarapada Bhowmick, no. 6, Golam Rasul Molliek, no. 16, Sk. Sharafat, no. 17, Hanif Mirza, no. 20, Sk. Mann, and no. 26, Chittaranjan Majhi, the orders of detention suffer from the same defect as that in the case of petitioner no. 5, Subhas Chandra Bose alias Kanta Bose. For the reasons already given we hold that the orders of detention made under s. 3(2) of the Act and the orders of confirmation by the State Government under s. 11 (1 ) of the Act in the case of all these petitioners are illegal and ultra vires and these petitioners are also entitled to be set at liberty forthwith. We pass on to consider the case of the petitioner mentioned in Group 2. As regards Pushkar Mukherjee, petitioner no. the order of detention was made by the District Magistrate, 24--Parganas on Septemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng investigation. (iii) That on 8-7-1967 at about 22.00 hrs. you along with your associates Kalyan Chakraborty and others again threatened Shri Sushil Kumar Chakraborty of Madhyamgram with assault out of previous grudge when he was returning to his house from New Barrackpore Rly Stn. (iv) That you were detained for your rowdy activities u/s 30(1) of the D.I. Rules 1962 from 22-4-1964 under Govt. Order no. 1233 H.S. dated 15-4-1964 and was released from detention on 4-10-1965. (v) That for your rowdy activities you were detained on 19-9-1966 under P.D. Order no. 163/66 which was confirmed under Govt. Order no. 8999 H.S. dated 26-11-1966 and you were released from such detention on 13-3-1967 under Order no. 1095 H.S. dated 13-3-1967 during General release. II. Thus from your activities subsequent to your release from detention under the P.D. Act on 13-3-1967 it appears that the detention did not produce the sobering effect on you. You have become a menace to the society and there have been disturbances and confusion in the lives o,f peaceful citizens of Baraset and Khardah P.S. areas under 24-Parganas District and the inhabitants thereof are in constant dread of distur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od or defined with sufficient certainty it can be called vague. It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. It is however improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it. That is a matter of detail which has to be examined in the light of the circumstances of each case. If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague. The only argument which could be urged is that the language used in specifying the ground is so general that it does not permit the detained' person to legitimately meet the charge against him because the only answer which he can make is to say that he did not act as generally suggested. In certain cases that argument may support the contention that having regard to the general language used in the ground he has not been given the earliest opportunity to make a representation against the order of detention. It&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
