Krishna Lal Dutta v. The State of West Bengal

BEG, J. The petitioner, a citizen: of India; has filed this habear corpus petition c;hallenging the order of . his. detention, dated 2~rll-19n, passi'd. under Section 5 cfause <ai of Maintenance of Internal Sccurit} Act, 1971 (hereinafter referred to as 'the Act').

It appears that the petitioner was actually arrested on 20-11,1972 and that the. detention order was passed subsequently on 24-11-1972, and; on that very" d'ate, the .petitioner was served with the-document containini; the sole ground of detentlQD given as foflows :-

"I. That on 11-1(};72 at' about 01.55 hrs., you alona with your associates. being armeld with bombs and other weapons, victimised wagon No. NR ) 739:3 Ex Bro to KPD attached to. runnin~ j!Oods train in ·EC 249 DN near the Booster Sub-station for df Dum Dum Jn. RIS when the train slowed down traffic restriction and. committed theft in respect of tea chests. Train guard RPF party challenged you and your associates when you hurled bombs towards the RPF party. RPF RK Sitaram Rai fired one r.ound in self defence when you arjj your associates fled I> away leaving behind three chests of tea at the P.O.

Your action caused disruption of train service for a considerable : timei and affected supplies and services.

You have thus acted in a manner prejudicial to the inaintenance of supplies and serVices essential ·to the com-n1unitv'". - After givin~ what is marked as ground number 1 only, implying thereby that. tliere was no other ground of detention, the document proceeds:

"You are hereby infornied that you may make a re-presentation to the State Gavernment against the deten-tion· qrder and that such representation shall be addressed to the. Assistant Secxeta:r'y/ Home (Special) Department, Government of West Bengal and forwarded through the Superintendent of the. Jail in Which you have been detain-ed as early as Jl()Ssible. Unkler Section 10 of the Mainte-rt.ance elf Internal security · Act, 1971 (Act 26 of 1971) your case shall be placed before Advisory Board within thirty days from the date of your detention under the order.

You are also informed that under Section 11 of the · Mainlcnancc of Internal Security Act, 1971 . (Act. 26 of 1971 ) , the Advisory Board shall if you . desire to .be so heard, hear you in person, and, :if you desire to be so _heard by the Advisorty Board,.·you shall intimate such desire in your representation to the State Government".

, An annexure to the affidavit filed by a Special Secretary in the Home Department of the Government of West Bengal, who was tlle District Magisl!'llte concerned when the imp~gned det~ntion <Jrder was made against the. petitioner; IS, !U copy of the petitioner's representation addressed to the Gc;)Ve.mmeot, Jn the representation as well as in the petition before us, the peli• tioner asserts· that the allegations against him. are absolutely untrue.- In his application ·to this Court he states that it is "palpably .false and impracticable" to allege that the petitioner, with some associates, committed theft of "°me tea chests from a running wagon and that ho !led when challeng~. leaving behind three chests of tea "at the P.O.". Be that as it may,_it is difficult to understand what is meant by "the P.O." In his representation to the Government, the peti-tioner had submitted that there was no evidence that he was identifi-ed by anybody as a participator in the incident.

In the affidavit in Qpposition to the petition, the official concern-ed, who had passed the "detention ·order, stated :

"The running__goods train as stated therein actually means a: goods train which had come to a stop due to traffic restriction and ilo_t actually a running ono as sought to be suggested by th_c petitioner".

The aflldavit also contained the statement :

"It appears from the records that the petitioner is a notorious wagon breaker operating near, Dum Dun1 Junc-cion Railway Station''.

Learned Counsel appearing for the State of West Bengal was asked to explain how the J:l"titioner could possibly make an effective representation against his detent:i'Qn when the District Mag'.istratc had a stationary train in mind which he actually described as "a rw1ning goods train" in the gr:ounds icf detention, \Vhcn it was not indicated what was meant by "the P.O.", and when the allegation that the petitioner was a "fiotorious wagon breaker operating near Dnm Dum Junction Railway Station" was never communicated to him although it, apparently, formed one of the grounds on which the detention was ordered. In reply, learned Counsel for the State of West Bengal stated that he had the whole record before him on which the detention was ordered and he placed that record before us. We were unable to find any menti.Qn in this record that the petitioner was "a notorio~s w~gon breaker". On the other hand. we found a description there of the modus operandi of a gang of thieves operating on passenger · trains which used to deprive the passengers of their trunks and other goods while one of" the ment-bers of the gang sat near the passMgers with a newspaper spread out in front of him which would. be read out loudly to distract their· attention and used also to obstruct their view. It is mentioned there that the activities of this gang commenced after the incident of 11-10-1972. It is also mentioned there that a number of incrimi-nating articles were recove1ed from members of this gang of thieves including the petitioner and that prosecutions were pending against them.

_ It is . true that the incident which occurred at: about Z a.m. on 11-10-1972, forming ihe ground df detention,· is also mentioned in the record, but, there is no indication as to _how __ any information · whatsoever came to the Djstnct Magistrate from any_ source_ wl!atSo-ever _that the petitioner was a member of the gang which was concerned with such an incident, Presumably, this ·was the whole record as learned Counsel for the State informed us. This makes the petitioner's assertion, that he was not only i)rrested on 20-10-1972 for reasons not disclosed ll to him, but, when sufficient evidence could not be found a against him by the local _officials, a detention order was made on ground, covered by the Act,· whiclt could be conveniently trotted out at the time, seem plausible. l]eprivation of a citizen's personal liberty is a serious matter. Those exercising· drastic powers of preventive detention, which arc entrusted to them for protecting valuable social and public interests, should at least take care to ascertain whether a detention. is . being ordered in a manner and on materials 'Which disclose that it-is ·really "necessary" to order a detention with a view to preventing the person to be detained from acting in any manner prejudicial to the objects for which preventive detention may be lawfully ordered. If they misuse these powers, by acting unreasonably, capriciously, arbitrarily, or in a malafide manner, public confidence in them is shaken. We arc · unable to say whether the District Magistrate acted unreasonably in making the detention order. --- But, presuming that, whalc•ver was in the· record operated, as learned Counsel for the State · ·asserted, against _the petitioner, he should have been given fuller information of allegations against hini: Tt is not explained why this was not done.

We arc not concerned here with the adequecy or. sufficiency of a ground of detention. T)lere is_ clearly -a nexus between the sole ground for detention given a_nd the maintenance of essential supplies and services. Bnt, as indicatod above, we have found that matters which were never commuriicated to the petitioner also appear to have been taken into account while ordering the detention of the petitioner. Further more the sole ground of detention is vague in so far as it is .not apparent what is meant by the words "the P.O.". Recently, it was held by this Court in Probhu Dayal Deorah Vs . District Magistrate, Kamrup_ & Ors.,( 1) that vagueness of a single .ground !n . could vitiate a detention order. The grounds given cou:U not, ?ur o~inion enabl~. the petitioner to effectively· exercise his constitutional. nght oJ -making a, representation against his detention.

The result is that we allow this petition and declare the deten-tion of petitioner to be illegal.- We o~er that the petitioner .be released forthwith. -