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1981 DIGILAW 69 (GAU)

Madhab Ch. Chakraborty v. State of Assam and Ors.

1981-07-01

B.L.HANSARIA, K.LAHIRI

body1981
Lahiri, J.:- This is a habeas corpus application. The peti­tioner was detained, under order of the District Magistrate, Kamrup made under Section 3(2) of the National Security Act, 1980, "for preventing him from acting in a manner prejudi­cial to maintenance of public order". The detenu was detained on 10.3.81 and on the same date the grounds of detention were served on him. He made representation to the Government which was rejected. His case was heard by the learned Advisory Board. Acting on the opinion of the learned Advisory Board, the Government confirmed the order of detention on 14.6.81. 2. The allegations against the petitioner as revealed in the grounds of detention may be summarised as follows : (1) That he was, at all relevant period, an active supporter of AASU and AAGSP and a Member of the Anchalik Karmachari Parishad; (2) that he had been injured while "experimenting with a home-made cartridge in a country made gun"; (3) that he was engaged in the activities like collection of bombs, manufacturing and procuring of guns etc. Insofar as this item is concerned, a series of instances have been cited giving specific date. It is alleged that on the 30th of November, 1980 he went to Barpeta and brought arms and explosives, again on the 9th of December, 1980 he asked one Shri Baishya to bring some arms and explosives made a plan to hand over one country-made gun and bombs to one Rahman around 8.30 P.M. but he was caught red-handed by the Police. 3. The learned Counsel for the detenu Submits that the first ground, to wit : That the petitioner was a Member of "the Organisations" cannot be a ground for detention. The learned Counsel submits that the Government itself is discuss­ing with AASU and AAGSP for solution of the problems arising out of Foreigners Issue and as such the ground of detention is irrelevant. The Organisations have not been declared illegal or unlawful. Secondly, the learned Counsel submits that there is absolutely no date or materials furnished to the detenu as to when and where the detenu was injured while "experi­menting with home-made cartridges in a country-made gun". The ground is hopelessly vague and no effective representa­tion could be made by the detenu in consequence where of he was denied of his statutory cum-Constitutional rights. The ground is hopelessly vague and no effective representa­tion could be made by the detenu in consequence where of he was denied of his statutory cum-Constitutional rights. Insofar as the third Ground is concerned, the learned Counsel submits that even if the entire allegations are accepted at their face value, the acts or activities did not cross the perimeter of 'law and order' to enter within the narrower concentric circle, of public order". Counsel relies on the decision of the Supreme Court in AIR 1970 SC 814 Sudhir Kr. Saha; AIR 1971 SC 2486 Madhu Limaye; AIR 1966 SC 740 . Dr. Ram Monohar Lohia; AIR 1970 SC 1228 Arun Kumar Ghose AIR 1972 SC 2886, and Dipak Base vs. Govt. of west Bengal. We find sufficient force in the contentions. We extract the grounds, of detention : Grounds of detention Shri Madhab Chakraborty S/o Sri Halodharma Chakraborty of village Janigog, P.S. Nalbari, District Kamrup. That you are an active supporter of AASU and AAGSP and a member of the Anchalik Karmachari parishad and that you had been injured while experi­menting with a home-made cartridge in a country-made gun and that you have been engaged in the activities like collection of bombs, manufacturing and procuring of guns etc. on 30.11.80 you went to Barpeta along with Shri Nao Ram Baishya in a Motor Cycle with a view to procure some bombs. On the 3rd day of Nao Ram Baishya, who stayed there, came back to your house and handed over to you two bombs and six 'hawi bombs' on 6.12.80. You again sent Shri Baishya to bring 5 more bombs. You have made a plan to hand over one country-made gun and those bombs to one Rahman on 6.12.80 at 8.30 P.M. But you were caught red-handed by the Police. You are therefore acted and likely to act in a manner prejudicial to the maintenance of public order. You may Submit representation to the State Govern­ment against the order of detention through the Superin­tendent of District Jail, in which you are detained, if you so desire." [ Emphasis added ] 4. You are therefore acted and likely to act in a manner prejudicial to the maintenance of public order. You may Submit representation to the State Govern­ment against the order of detention through the Superin­tendent of District Jail, in which you are detained, if you so desire." [ Emphasis added ] 4. In a cetena of cases it has been ruled by the Supreme Court in the field of preventive detention Jurisprudence that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non-existent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity. The detention order is based on "subjec­tive satisfaction." It is an executive action. Can the Court predicate as to the extent the bad ground or reasons had operated in the mind of the detaining authority or whether the order of detention could have been made at all if the bad grounds or reasons were excluded and only the good ground or reasons alone were before the detaining authority? It could not be so predicated. Therefore, if one of the grounds is bad the order of detention must be set aside. We rely on Shibban lal Saxena vs. State of U. P. AIR 1954 SC 179 , Motilal Jain AIR 1968 SC 1509 , Pushkar Mukherjee vs. State of W.B. AIR 1970 SC 852 , Biram Chand vs. State of U. P. AIR 1974 SC 1161 , Bhupal Ch. Chose AIR 1974 SC 255 , Satyabrath Ghose AIR 1974 SC 258 , Kusha Shal AIR 1974 SC 156 . Ram Bahadur AIR 1975 SC 223 , Dwarika Prasad Sahu AIR 1975 SC 134 , Md. Yusuf Rather vs. State of J & K AIR 1979 SC 1925 . An order of detention is made on 'the subjective satisfaction' of the detaining authority. The Court can neither consider the propriety of sufficiency of the grounds on which the subjective satisfaction is based provided they have a rational probative value and not extraneous to the purpose of detention. The Court cannot review the grounds and substitute its own opinion for the opinion of the detaining authority by applying the objective tests, or determine the necessity of detention for a specified purpose. The Court cannot review the grounds and substitute its own opinion for the opinion of the detaining authority by applying the objective tests, or determine the necessity of detention for a specified purpose. It cannot inter­fere if there is some material in the grounds upon which a reasonable man may form the subjective satisfaction, provided the grounds are germane to the reasons or purpose of detention. However, the Court's judicial review is permissible, inter alia, on the grounds (1) that "the satisfaction," is not based on materials which are of rationally probative value i.e. no rational human being can consider any connection with the fact in respect of which the satisfaction is reached; or (2) if the grounds are not relevant to the subject matter of the enquiry or extraneous to the scope and purpose of the statute; or (3) if the detaining authority takes into consideration as relevant factor something which it cannot properly take into account in deciding whe­ther or not to exercise the power or the manner or the extent to which it should be exercised. The power of the Court is not an appellate one. As a judicial authority it is concerned and only concerned with scrutinizing the order of detention to see whether the statutory authority has contravened the law by acting in excess of the power which the legislature has conferred on it. A ground which is self-sufficient and self-explanatory and readily intelligible by reasonable person without any legal aid containing basic facts and materials is a good ground. A vague ground means a ground which does not contain either (a) the basic facts or (b) the basic materials or (c) the basic facts and materials are neither self-sufficient and self-explanatory, or (d) a ground which is not readily intelligible to a reasonable and prudent person without legal aid. Of course, the term 'vagueness' is a relative one. The function to determine as to whether the ground is vague is to con­sider whether the details withheld were the essential constituents of the grounds or are merely subsidiary facts or further par­ticulars of the basic facts. If the details withheld are the essential constituents, the grounds must be held to be vague, but withholding of subsidiary facts or further particulars of the basic facts does not amount to furnishing a vague ground. 5. In this backdrop let us decide the case in hand. If the details withheld are the essential constituents, the grounds must be held to be vague, but withholding of subsidiary facts or further particulars of the basic facts does not amount to furnishing a vague ground. 5. In this backdrop let us decide the case in hand. The first part of the first sentence of the ground is the allega­tion that the detenu is a member of some organisation abbre­viated as AASU and AAGSP. Are they unlawful association/organisations? Nothing has been stated. How could the mem­bership of the organisations by itself be a ground for deten­tion to safeguard the public order? Nothing has been explai­ned nor is there any explanation in the Counter filed by the State. The contention has strong force. The second part of the first sentence contains allegations that the detenu had been injured "while experimenting with a home-made cartridges in a courtry-made gun". It does not contain the essential constitu­ent of the ground. The details withheld are (1) the date, (2) time and (3) place. These are undoubtedly the essential constituents of the grounds. As such it must be held to be a vague ground and no effective representation could be made by the detenu on the scanty material in the said ground. We are constrained to hold that on this ground alone the peti­tion must succeed. 6. Insofar as the third ground is concerned the allegations are that the detenu was collecting arms and ammunitions. The acts, actions or conduct fill within the realm of ''law and order". Do they 'per se' fall within the expression "public order"? It is undoubtedly true that the distinction between the expressions 'law and order' and 'public order' lies not merely on the nature and quality of the act but entirely depends on the degree and extent of its reach upon the society. The effect of an act or series of acts is the criterion to determine whether an act or series of facts can be reasonably stated to be prejudicial to the maintenance of public order. Acts simi­lar in nature but committed in different context, circumstances or situations might cause different reactions. Collection of arms and explosives may be for the purpose of creating law and order problem. It may, in a different context and background, affect "public order". Ordinarily clandestine arms dealings are punishable under the provisions of penal laws like I.P.C.. Acts simi­lar in nature but committed in different context, circumstances or situations might cause different reactions. Collection of arms and explosives may be for the purpose of creating law and order problem. It may, in a different context and background, affect "public order". Ordinarily clandestine arms dealings are punishable under the provisions of penal laws like I.P.C.. Arms and Explosive Acts, and, such laws would be sufficient to cope with them. However, in the context of extra ordinary circumstances, completely different consequence might follow and a person may be detained for the maintenance of public order. The context, circumstances or environments must be narrated. The ground in question is just a run of the mill averment of possession of arms and ammunitions which can be taken care of by the penal laws. There is nothing in the grounds that the acts and conducts were committed with the object of creating 'public order' or there existed the problem of 'public order' in the area in question. There is no inkiling as to the prevailing circumstances or environments in the area or its neighbourhood at the relevant time. There is no indica­tion in the grounds of detention to show the relevant context, or circumstances or environment which might have brought the case within the narrower concentric circle of "public order" from the larger concentric circle of 'law and order'. As such, the detention for the purpose cannot be sustained. We rely on Dipak Base vs. Govt. of West Bengal AIR 1972 SC 2886 Sudhir Kr. Saha vs. Police Commissioner, Calcutta AIR 1970 SC 814 and Arun Kumar Ghose vs. State of west Bengal AIR 1970 SC 1228 . We are of the opinion that the ground stated in support of the detention cannot amount to disturbance or maintenance of public order on the authority of the aforesaid decisions. 7. For the foregoing reasons we hold that the petition must be allowed and continued detention of the petitioner is void and illegal. The Rule is made absolute. The petitioner shall be released forthwith unless he is wanted in connection with any other case.