TARALA HAZRA v. DISTRICT MAGISTRATE, ANDAMAN — 1982 DIGILAW 234 (CAL)

JUDGEMENT N. C. Mukherji, J.:- This Rule arises on an application under Art.226 of the Constitution of India for a Writ and/or order or orders and/or direction in the nature of Writ of Habeas Corpus in the matter of an order passed by the District Magistrate, Andamans, directing Ajoy Kumar Jyoti Hazra to be detained in exercise of the power conferred under S.3(2) of the National Security Act, 1980. The application has been filed by Tarala Hazra, mother and Babul Hazra, brother of the detenu. The facts of the case may briefly be stated as follows :- 2. The detenu is a popular Trade Union Leader of Andaman. He is President of Saffai Karmachari Union of the Municipal Board of Andaman. The Andaman Municipal Board which is controlled by the Congress (I) Party has denied the employment of 300 Harijan workers who have become the members of the Saffai Karmachari Union. Industrial dispute has been raised on that regard and the same is pending before the Industrial Tribunal, Andaman. On behalf of the said Union a writ application has been moved before this Court challenging the illegal act of changing duty hours of the staff of the Municipal Board. The said application was disposed of in Sept., 1981 directing the Andaman Administration/Central Government to refer the industrial dispute to the appropriate Tribunal. Ever since Shri Hazra entered in the Trade Union field of Andaman, he has become eye sore to the local Congress (I) leaders. The local Congress (I) leaders having failed to ameliorate the grievances and to solve the problems of the local people who are very much against the bona fide Trade Union activities of the said Shri Hazra. On Feb. 23, 1982 when Shri Hazra was discussing with his colleagues in the Union Office as to how best to conduct the pending reference before the Tribunal he was arrested from the Union Office at Bamboo Flat, Andaman and was served with an order passed by the District Magistrate. Andaman under S.3(2) of the National Security Act, 1980. Shri Hazra on that date was taken to Cellular Jail, Port Blair and was kept in solitary confinement in the vicinity of lunatics and in a most unhygenic atmosphere. Smt. Amita Hazra on Feb. Andaman under S.3(2) of the National Security Act, 1980. Shri Hazra on that date was taken to Cellular Jail, Port Blair and was kept in solitary confinement in the vicinity of lunatics and in a most unhygenic atmosphere. Smt. Amita Hazra on Feb. 24, 1982 approached the Jail Authority to hand over the papers relating to the grounds of detention to her for drafting the representation contemplated under S.8 of the Act. Smt. Hazra, however, was not allowed to be given the copy of the grounds of detention. Smt. Hazra was not allowed to have a proper interview with the detenu at Cellular Jail to know about the grounds of detention. As such, Smt. Hazra made a representation to the District Magistrate, Andaman, stating that the refusal to hand over the grounds of detention amounts to violation of S.8(1) of the Act. The said representation was duly received by the District Magistrate, Andaman, but no step was taken to hand over the grounds to Smt. Hazra for the purpose of making an effective representation under Art.22(5) of the Constitution of India. It is stated that Shri Hazra is a peace loving citizen and a popular Trade Union leader. He has got no connection with any activities which may be prejudicial to the maintenance of public order. The purported grounds served by the Authorities do not contain any reason or ground to justify detention of Shri Hazra under the National Security Act. The petitioners state that at the instance of local Congress (I) leaders Shri Hazra was arrested and detained. It has further been stated that Shri Hazra has been detained with a mala fide motive and collateral purpose without any material whatsoever. The petitioners state that the order of detention was passed without any application of mind and there is no bona fide satisfaction of the detaining authority as to the need or justification of Shri Hazra's detention. The petitioners state that the wife of Shri Hazra was not given the ground of detention and as such opportunity to make effective representation against the order of detention as contemplated under S.8(1) of the Act has also been denied. It has also been stated that the purported order of detention has not been approved by the State Government as required under S.3(4) of the Act nor any communication of such approval was sent to the detenu so far. It has also been stated that the purported order of detention has not been approved by the State Government as required under S.3(4) of the Act nor any communication of such approval was sent to the detenu so far. Being aggrieved by the aforesaid order of detention, the petitioner moved this Court and got a Rule. The grounds taken in the petition are to the following effect. The order of detention was passed with a mala fide motive and for a collateral purpose; (the provision of Art.22(5) of the Constitution has been violated inasmuch as the detenu has not been given opportunity to make effective representation against the detenu; the ground of detention has not been made available for preparing representation; the detenu is never connected with and has not been a party to any act prejudicial to the security of the State or maintenance of services and supply essential to the community or maintenance of public order; the Authority has not applied its mind and the purported satisfaction of the Authority is based on extraneous consideration and is not bona fide or lawful; the impugned order not being approved by the appropriate State Government within the statutory period the same is non est and the detention of the detenu is totally illegal. 3. An affidavit has been filed by opposite party No. 1 Shri V.V. Bhat, the District Magistrate, Andamans District. The allegations made in paragraph 2 of the Writ Petition have been denied. It is stated that the activities under the garb of alleged trade union activities of the detenu are not either bona fide or lawful. It is stated that the allegations made in paragraph 4 of the Writ Petition are not fully correct. The detenu Shri Hazra was taken in custody on the very day the order of detention was issued. It is not a fact that the detenu has been kept in confinement in the District jail. With regard to the statement made in paragraph 5 it has been stated that the detenu was informed of the grounds of detention be serving notice on him through the Superintendent, District Jail, by the District Magistrate on 25-2-1982. Shri Hazra was permitted on 4-3-1982 by the Administration to make over copy of grounds of detention to his wife. With regard to the statement made in paragraph 5 it has been stated that the detenu was informed of the grounds of detention be serving notice on him through the Superintendent, District Jail, by the District Magistrate on 25-2-1982. Shri Hazra was permitted on 4-3-1982 by the Administration to make over copy of grounds of detention to his wife. With regard to the statements made in paragraph 6, it has been stated that the detenu's wife made a representation to the District Magistrate on 1-3-1982. The wife of the detenu collected the copy of the grounds of detention from the Office of the Superintendent, District Jail on 11-3-1982. The statements made in paragraph 7 have been denied. It is stated that the activities of the detenu were very much prejudicial to the maintenance of public order and also prejudicial to the maintenance of supply and services essential to the community. The grounds on which the detenu was detained under Sec. 3(2) of the National Security Act are valid and lawful and there are sufficient reasons for detention of Shri Hazra under the said Act. The statements made in paragraph 8 have also been completely denied. It is stated that there was sufficient justification for the detention of Shri Hazra as his activities were very much prejudicial to the maintenance of public order and to the maintenance of supplies and services essential to the community. The detenu was afforded earliest opportunity of making the representation against the detention order of the appropriate Government. The averments made in paragraph 10 have also been denied. It is stated that there was no mala fide motive or any collateral purpose for detaining Shri Hazra. The detaining authority had a right or authority under the National Security Act to detain him by virtue of the order of the Administrator. The provision of Art.22(5) of the Constitution of India has not been violated. It is absolutely incorrect that any fundamental right of the detenu guaranteed under Arts.14, 19 and 21 of the Constitution of India has been infringed or violated. The detaining authority applied his mind and having been satisfied that there are sufficient grounds for detention issued the order of detention. It is absolutely false that the order of detention is based on extraneous consideration. The detaining authority applied his mind and having been satisfied that there are sufficient grounds for detention issued the order of detention. It is absolutely false that the order of detention is based on extraneous consideration. It is incorrect to say that the detaining authority was under any pressure from political leaders before the order of detention was issued. It is stated that the order of detention is perfectly legal and valid and cannot be challenged on any score. 4. Another supplementary affidavit-in-opposition was filed by Shri G.P. Sewalia, the District Magistrate at the relevant time. An affidavit-in-reply on behalf of the petitioners have been filed by Shri N.K.P. Nair, Vice-President of Sara Andaman and Nicobar Safaiwala Karmachari Union. In the affidavit-in-reply the position taken in the application has been reasserted and the statements made in the affidavit in opposition have been denied. 5. Mr. Chatterji in the first place submits that the order of detention was issued on 23-2-1982 and on the same day the detenu was arrested from the Union Office. On 25-2-1982, the grounds of detention were served on the detenu at Jail. On 1-3-1982 representation was made by the detenu's wife Smt. Anita Hazra for getting grounds for the purpose of making representation. The petitioners moved an application under Art.226 of the Constitution challenging the order of detention and get a Rule. On 10-3-1982 at the time of moving the application it was stated that the detenu's wife was not getting the grounds of detention and that the detenu was kept in the jail in a most unhygienic condition. On such representation being made appropriate orders. Anita was permitted to get the grounds on 11-3-1982. Mr. Chatterji submits that as the grounds of detention were not supplied to the detenu's wife earlier either was obstacle on the part of the detenu to make effective representation. It is also submitted by Mr. Chatterji that though the Advisory Board considered the representation on 9-4-1982 and the detention order was affirmed, the order was not communicated to the detenu. In this connection, it is stated that the administration considered the representation on 24-3-1982, but that was also not communicated to the detenu. It is true that there was some delay in supplying the grounds of detention to the detenu's wife. In this connection, it is stated that the administration considered the representation on 24-3-1982, but that was also not communicated to the detenu. It is true that there was some delay in supplying the grounds of detention to the detenu's wife. But we find that the grounds of detention were served on the detenu without any delay and the grievances made by the petitioner as mentioned above are not such as to go at the root of the order of detention. 6. Mr. Chatterji with much emphasis contends that all the grounds besides ground No. 11 can at best be said to be violation of law and order and not violation of public order. Only in ground No. 11 the Authority wants to say that the alleged activities of the detenu were prejudicial to the maintenance of supplies and services essential to the Community. With regard to this ground, Mr. Chatterji contends that in the ground it has been stated that the detenu instigated the members of the Union not to obey the order and timings and brought about strike by the sweepers. Until now the strike of the sweepers is continuing and as a result of this strike, a grave problem of hygiene and sanitation in the entire town of Port Blair has emerged affecting thereby the public health of the citizen and it is feared that severe epidemic in view of this deteriorating health condition is likely to develop at any moment. The facts have been denied by the petitioners. It is submitted that even assuming that the facts are correct, these are the results of the strike. To hold a strike is not illegal under any law. With regard to the change regarding time of work of the sweepers it is the admitted position that the matter is pending before the Industrial Tribunal, Andamans. Whether the demand of the workers is right or wrong, will be adjudicated by the Tribunal. In such circumstances, Mr. Chatterji submits that for the alleged consequences of the strike which has never been declared illegal, the detenu cannot be held responsible and by no stretch of imagination it can be said that the alleged activities of the detenu were prejudicial to the maintenance of supplies and services essential to the community. Mr. In such circumstances, Mr. Chatterji submits that for the alleged consequences of the strike which has never been declared illegal, the detenu cannot be held responsible and by no stretch of imagination it can be said that the alleged activities of the detenu were prejudicial to the maintenance of supplies and services essential to the community. Mr. Chatterji also submits that the supplies and services the maintenance of which is essential to the community within the meaning of this Act will have to be published by a notification. In this case, the notification has been published only on 18-2-1982 and the detenu has been detained on 23-2-1982, that is very soon after the notification was published. In this connection, Mr. Chatterji refers to a decision reported in AIR 1982 SC 710 : (1982 Cri LJ 340) (A.K. Roy v. Union of India). In this case, it has been held "no person can be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless, by a law, order or notification made or published fairly in advance, the supplies and services, the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed, are made known appropriately, to the public". Very much relying on this decision, Mr. Chatterji contends with much emphasis that in this particular case the notification was published only a few days before the order of detention was passed. As such, it cannot be said that the notification was made known to the public including the detenu appropriately. That being so, the order of detention, according to Mr. Chatterji, was passed mala fide. Mr. Chatterji submitted that it may be that in order to pass an order of detention against the detenu for the alleged act prejudicial to the maintenance of supplies and services essential to the community, notification was published only a few days before the order of detention was passed. Mr. Sanyal, learned Advocate appearing on behalf of the opposite parties, submits that the alleged incident, mentioned in ground No. 11, took place in July, 1981 and August, 1981. True, it has been stated as such. But Mr. Chatterji attacks the ground stating that the publication was made only a few days before the order of detention was passed. Mr. Sanyal, learned Advocate appearing on behalf of the opposite parties, submits that the alleged incident, mentioned in ground No. 11, took place in July, 1981 and August, 1981. True, it has been stated as such. But Mr. Chatterji attacks the ground stating that the publication was made only a few days before the order of detention was passed. According to Mr. Chatterji, the decision in AIR 1982 SC 710 : (1982 Cri LJ 340) fully supports him and the opposite parties have no answer to it. Mr. Chatterji then placed before us grounds Nos. 1 to 10 one by one. With regard to ground No. 1 Mr. Chatterji submits that the alleged incidents took place on 20-7-1978 and 3-11-1978 and those incidents have no proximity to the order of detention passed in Feb. 1982. Again, in around No. 1, it has been alleged that the detenu organised a Union and resorted to strike. In sub-paragraphs a, b, c and d some specific incidents have been mentioned, all of which took place in 1979 and for some of these specific cases have been started. These incidents indicate that the detenu managed to bring the striking workers to Port Blair and organised demonstration. The workers indulged in violent acts because of his direct instigation. Ground No. 2 also speaks of the detenu's instigation and starting of a criminal case on 30-7-1980. Ground No. 3 similarly speaks of detenu's instigation on 7-9-1980 for which, however, no criminal case was started. Ground No. 4 is with regard to the incident stated to have taken place on 15-3-1980. For the said act the detenu along with his four associates, were prosecuted under S.107/116 of Cr. P.C. In ground No. 5, it has been stated that on the same day the detenu and his eight associates distributed printed pamphlets inciting Military Force Police and C.R.P.F. and helped the workers to strike in Messrs. Tata Oil Mill (P) Ltd. For this alleged act a case has been started. Mr. Chatterji states that this ground is also too remote and nothing besides instigation on the part of the detenu has been alleged. Tata Oil Mill (P) Ltd. For this alleged act a case has been started. Mr. Chatterji states that this ground is also too remote and nothing besides instigation on the part of the detenu has been alleged. Moreover, this ground is vague as it has not been stated what are the printed pamphlets which could incite the Military Force, Police and C.R.P.F. In ground No. 6, it has been stated that on 19-8-1980 some loyal workers of the ATI Factory were severely beaten by the detenu's supporters and a case was started under Ss.323, 524 and 506, I.P.C. For the activities of the detenu's supporters how the detenu can be responsible is not understood. Ground No. 7 speaks of an incident which is said to have taken place on 14-8-1980 where it is alleged that the detenu adopted violent attitude and created serious situation disturbing peace and public order when the Union members gheraoed and criminally restrained the then Welfare Officer of ATI and for this a criminal case was started. Similarly ground No. 8 speaks of an incident said to have taken place on 16-3-1980 when the Union members of the detenu under his instigation abused and threatened the Resident Manager of ATI and for that a case has been started. In ground No. 9 it has been stated that on 18-8-1980 the Management of ATI declared Lock-out in the Factory and it is alleged that the detenu brought the workers on strike to Port Blair on the same day and took out a procession in which provocative slogans were shouted. For this incident also, a criminal case was started. Ground No. 10 is with regard to the incident said to have taken place on 22-9-80. alleging that the detenu went to Rut Land Island along with his associates and instigated the members of ATI to adopt go slow tactics and due to instigation the workers took the law in their hands and blocked the road preventing vehicular traffic. For this incident also a case was started. In Ground No. 12 it has been stated that the detenu organised a Union known as Andaman Bench Resort Union of the employees of the Andaman Bench Resort on 3-11-1981 and a case was started under S.341/506 I.P.C. In Ground No. 13, it has been stated that on 9-2-80 the members of ATI Karmachari Union assaulted the member of the rival Union. In Ground No. 14, it has been stated that on 1-12-82 under his instigation and in his presence the Union members assaulted the rival workers of Marine Department situated in front of Mohanpura Power House and for that a criminal case was started against the detenu and others. Mr. Chatterji with much emphasis submits that the incidents mentioned in grounds Nos. 1 to 10 all took place between 1977-1980; the order of detention having been passed in Feb., 1982 all these grounds must be considered as too remote. Ground No. 12 speaks of an incident said to have occurred on 3-11-1981 and grounds Nos. 13 and 14 speak of an incident having taken place in Feb., 1982. It has been alleged that the detenu only instigated or organised a Union and the members of his Union assaulted the workers of the rival Union. Even assuming that all these facts are correct, Mr. Chatterji submits that these can in no way affect the public order and the even tempo of the normal life of the citizen. Even assuming that the detenu was responsible for the consequences alleged to have taken place at best those can be said to have affected law and order. Mr. Chatterji cited a number of decisions before us under the Maintenance of Internal Security Act which clearly explain the distinction between violation of law and order and violation of public order. Those decisions have full application in this case also and we agree with Mr. Chatterji that the incidents mentioned in grounds Nos. 1 to 10 and 12, 13 and 14 cannot be said to have affected the public order and that being so, it was not all necessary to detain the detenu on any one of these grounds. After slating grounds Nos. Chatterji that the incidents mentioned in grounds Nos. 1 to 10 and 12, 13 and 14 cannot be said to have affected the public order and that being so, it was not all necessary to detain the detenu on any one of these grounds. After slating grounds Nos. 1 to 14 it has been stated towards the conclusion that from all the activities as narrated above it is clear that the detenu had been deliberately trying to disturb the normal life of the public by taking law in his own hand and instigating others to do so and instead of taking recourse to lawful activities, he had been very violently indulging unlawful activities causing serious breach of peace and also causing health hazards disturbing the maintenance of supplies and services essential to the community in the Municipal area of Port Blair by making the sweepers who were the members of his Union to continue to remain at unlawful strike and to resort unlawful activities. As has been indicated earlier, there was some dispute with regard to the joining time of the sweepers and over that dispute reference has been made before the Industrial Tribunal and the Reference is still pending. The strike said to have been organised by the detenu was never declared illegal. It is contended on behalf of the opposite parties that as a result of the strike and as a result of the sweeper's not joining to their duties a grave problem of hygiene and sanitation in the entire town of Port Blair has emerged affecting the public health of the citizen. It cannot be said that the detenu has caused the unhygienic and in sanitary, condition of the town. Such condition may be the consequence of strike. The allegation against the detenu is that he orgnised the strike. Simply by organising a strike it cannot be said that he has acted in any manner prejudicial to the maintenance of supplies and services essential to the community. Again, relying on the decision reported in AIR 1982 SC 710 : (1982 Cri LJ 340) it must be said that in this particular case order of notification was not made or published fairly in advance and was not made known appropriately to the public including the detenu. Again, relying on the decision reported in AIR 1982 SC 710 : (1982 Cri LJ 340) it must be said that in this particular case order of notification was not made or published fairly in advance and was not made known appropriately to the public including the detenu. As such, the detenu cannot be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. Mr. Chatterji contends with much emphasis that even if a single ground is found vicious that invalidates detention. In support of his contention Mr. Chatterji relies on a decision reported in AIR 1981 SC 870 : (1981 Cri LJ 594), (Shiv Prasad Bhatnagar v. State of Madhya Pradesh). This was also a case under the National Security Act. In this case, it has been held "where the ground of detention under S.3 which was substantiated by several incidents, suffered both from the vice of staleness, in that about five years had elapsed since the happening of some of the incidents relied upon and the vice of irrelevance in that it related to 'law and order' and not to 'the maintenance of public order' as required by S.3(2), the detention would be illegal and the detenu will be entitled to be released. In coming to such decision, their Lordships relied on AIR 1969 SC 1004 (In Re : Sushanta Goswami). It was further held "The grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are vices, any single one of which is sufficient to vitiate a ground of detention. And a single vicious ground is sufficient to vitiate an order of detention." 7. Mr. Sanyal, learned Advocate appearing on behalf of the Opposite Parties, relies on a decision reported in AIR 1981 SC 2005 : (1981 Cri LJ 1686), (State of Gujarat v. Adam Kasam Bhaya). Relying on this decision, Mr. Sanyal submits that the authority concerned afforded detenu to make effective representation. Considering the facts, we agree with Mr. Sanyal and cannot declare the order of detention bad on the ground that no sufficient opportunity was given to the detenu to make an effective representation. Mr. Relying on this decision, Mr. Sanyal submits that the authority concerned afforded detenu to make effective representation. Considering the facts, we agree with Mr. Sanyal and cannot declare the order of detention bad on the ground that no sufficient opportunity was given to the detenu to make an effective representation. Mr. Sanyal next relies on the decision reported in AIR 1982 SC 8 : (1982 Cri LJ 150) (Smt. Hemlata Kantilal Shah v. State of Maharashtra). This was a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. In this case, it has been held that "The High Court under Art.226 and the Supreme Court either under Art.32 or under Art.136 do not sit on appeal on the orders of preventive detention. The normal law is that when an isolated offence or isolated offences is or are committed the offender is to be prosecuted. But, if there be a law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so, but it will be obligatory on the part of the detaining authority to formally comply with the provisions of sub-art. (5) of Art.22. The High Court under Art.226 and the Supreme Court under Art.32 has to see whether the formalities enjoined by Art.22(5) have been complied with by the detaining authority. If the formalities have been complied with, the Court cannot examine the materials before it and find that the detaining authority should not have been satisfied on the materials before it and detained the detenu under the Preventive Detention Act, for, that is the function of an appellate Court." True, this Court while dealing with an application under Art.226 of the Constitution of India cannot go into the merits of the grounds, namely whether the grounds are correct or not. This Court will have to accept the grounds as they are. But, this decision is no authority to say that this Court cannot enter into the question whether the alleged act affects law and order or public order or whether the alleged act of the detenu is prejudicial to the maintenance of supplies and services essential to the community. Until it is found that either the alleged act affects public order or affects the maintenance of supplies and services essential to the community, the order of detention cannot be upheld. Mr. Until it is found that either the alleged act affects public order or affects the maintenance of supplies and services essential to the community, the order of detention cannot be upheld. Mr. Sanyal next relies on a decision reported in AIR 1982 SC 146 : (1982 Cri LJ 338) (Fitrat Raza Khan v. State of UP). This decision was cited in support of the contention that the past conduct or the antecedent history of a person can appropriately be taken into account in making a detention order. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order. From the grounds of detention, the Supreme Court found that the alleged activities were prejudicial to the maintenance of public order. Again, the alleged incidents took place on 13-8-1980 and on 24-7-1981 and as such, those grounds could not be said to be too remote. For the reasons stated earlier this decision has no application to the facts of the present case. In conclusion we find that the order of detention cannot be upheld. 8. In the result, the application succeeds and the Rule is made absolute. The order of detention passed on 23-2-1982 is held invalid. Let the detenu be set free forthwith. N. G. CHAUDHURI, J. :- I agree. Petition allowed.