NISIIl KANTA MONDAL v. STATE OF WEST BENGAL

ORDER Datetl, 'the 6-7-71 Whereas .I am satisfied with respect to the person· known as Shri Nishi Kanta Monda!, son of Shri Radha nath Monda! of Dacca para, P. S. Bcmgaon, Dt. 24- Parganas that with a view to preventing him from act ing in any manner prejudicial to the maintenance of public order, it is necessary so to do, I therefore in exer cise of the powers conferred by sub-section ( 1) read with sub-section (3) of section 3 of th>,! West Bengal (Prevention of Violent Activities) Act, 1970 (Presi- dent's Act No. 19 of 1970), make this·order directing that 1the said Nishi Kanta Monda! be detained. Given under my hand and seal of office. Sd/ DISTRICT MAGISTRATE 24-PARGANAS 6-7-71" In pursuance of the above order, the petitioner was arrested on July 8, 1971 and was served with the. order as well as 226 SUPREME COURT RE"vRTS [1973] l S.C.R. grounds of detentio_n on ·the same day. On July 10, 1971 ~e District Magistrate sent report to the State Government about his having passed the order for the detention of the petitioner. The grounds of detention and other necessary particulars were . also sent along with the report. The State Government, after .consider ing the report and other particulars, approved the detentton order ·on July 17, 1971. Repreeentation made by the petitioner against his detention wa~ received by the State. Government on July 30, 1971. The representation was considered by the Staie Goverl! :ment and rejected on August 5, 1971. The case of the pel! tioner wa~ placed before the Advisory Board -on August 6, 1971. sent to ~ Advisory The petitioner's representation. was also Board. The Advisory Board. after considering. the material placed before it as well as the representation sent by the peti tioner and afttlr giving him a heariilg in person, subjllittecl its re port to the State Gmrernrnent on September 14, 19:7 I. Opinion was expressed by the Advisory Board that . there was sufficient cause for the detention of the petitioner. The State Government passe.d an order on October 5, 1971 confirming the orde~ for the detention of the petitioner. The. conjjfuiation order was there after communicaie4 to ihe petiti<>ner. The petition has been resisted by the State of W·~st Bengal and the affidavit of Shii Chandi Charan Bose, D .,uty Secretary, Home (Special) Department; Government of v 'st Bengal has bee'l. filed in opposition to the petition. Mr. Puri has addressed arguments amicus cur ae on behalf of the petition.er, while the respondent State has b..en represented by Mr. D. N. Mukherjee. The first contention which has been ad vanced by Mr. Puri is that the Act was enacted by the President in exercise of the powers conferred by section 3 of the West Bengal State Legislature (Delegation of Powers) Act, 1970. According to section 3 of the last mentionecl Act, the power of the Legislature of the State of West Bengal to make laws, which had been declare.d by the Proclamation to be exercisable by or under the authority of Parliament, was conferred on the Presi dent. In the exercise ofthe said power, the President could, from time to time whether Parliament was or was not in session, enact, as a President's Act, a Bill containing such provisions as he con sidered necessary. Some other formalities, detailed in section 3, were also required to be complied with by the President, but it to refer to them. is not necessary for 1the purpose of this case ~ction 2 of. the aforesaid Act defined "Proclamation" to mean the Proclamation issued on the 19th day of March, 1970, under article 356 of the Constrtution by the President, and published with the notification of the Government of India in the Ministrv It is urged of Home Affairs ~o. G.S.R. 490 of the said date. A B c D F G H N. K. MONDAL v. WEST BENGAL (Khanna, J.) 227 A c D F G H by Mr. Puri tha.~ the above mentioned Proclamation was revoked bY the President by another Proclamation in the beg.inning of this month. On account of the revocation of the ProclamatiO!l, the President's Act No 19 of 1970; according to the ~arnW counsel, ceas~ to have effect. As such, the petitioner could not be kept in ®tention in pursuance of the order made under that Act. The~e is, in our opinion, no force in the above contention be cause i~ is ha$ed upon the assumption 'lhat the lll_W made by· the President c~ to operate immediately upon '\ho; revocation of the Proclamation. This assumption is not correct and fUllS. cont rary t«;> clause (~) of article 357 of the Co~tution. According t;> that clause, "any law made in exercise of the Jll)Wer of Legislature of the State by Parliament or the Pl"'.,,sident or other authority referred l\o in sub-clause (a) of clause ( 1) vihich Par li~ent or !AA PtesWent or such other authority would not, but f<J1; the isai.ie of a Pro~ti. Qll under article 356. have been com petent ~ we sh; tll, to the extent of ~ incompetency, cease to have etieCll: on the ex, pira\ion of a ped\lf;l of one year af\er Proclama\i® h.as ~ed. to o~rate exceJ?t as res~ts thing d,one or Qmined to be do~ before the i;xpiration of the said period, ulilless the prqvisi\)lls. whi.ch shall s_o cease to have effect are sooner repel\led or re,e12act¢ with or v.:rth()ut modification by Act of !he apprOf)riate J,,eitislature". The ab()ve pro~on makes it plain that 1he p,eriod fllf which a f:\W i;nade under article 356( 1) remains in force is not co-timninous with the duration of It has npt be~n disJ?1,1ted. tlwt tl:w President was Proclama'lit)ll. competent u,o4er clau~ n) of article 356 of ~he Constitution to enact Act No. 19 o~ 1970. 'the saj,d Act, in. view of the provi sions of cilµ.l.Se (2) Q~ article 357, shall continue to remain in for.cc in s~iie of ~ revoca'ti.o!l of the Proclarnat_ion dated March 19, 1970 and would cease w h1;tve eff~t only on the expiry of one year after the Proclamati, on has. ceased to operate except ~ respects things done or omirt:ed to· be don,e b~fore t:h.e exp~ration of the sail! Period, unless the provisiQils of the Act are sooner repe~ed or re-enacted with or without modilj, qtion by Aot of the a1>1>1QPrial!,e l,egisllltu~e. As the aforesaid period of one year has not expired and as the provisions of the Act have not been re ~aled or re-eµacted with or without modification by Act of the :appr()priate Legi,s!ature, the impugned, Act sh.ould be held to be ~ill in force. In view of our fin, ding that the Act (Act: No. 19 of 1970) is still in force, it is not necessary to consider th~ question as to what would be the legal position in respect of subsisting deten tions after the Act ceases to have effect in acc()rdance with article 357 (2) of the Constitution. 228 SUPREME COURT REPORTS (19'73] 1 S.CR. Argument has then been advanced by Mr. Puri that the im pugned detention order was not in conformity with section 10 of the Act as it did not specify the date of detention. Section 10 reads as under : "10. In every case where a detention order has been made under 'this Act, the State Government shall, with in thirty days from the date of detention under order, place tefore the Advisory Board, constituted by it U'lder section 9, the grounds on which the order has beer. made and the representiution, if any, made by the person affected by the order, and in case where order has been made by an officer specified in sub-sec tion ( 3 ) of section 3, also the rer; ort m.ade by such officer, under sub-section ( 4) of section 3." According to the learned counsel, the words "within thirty days from the date of detention under the ·order" in the section indi-• cate that it is imperative on the part of the detaining authority to specify the date of detention in the order. We find ourselves unable to accede to this submission. All that s.ection 10 con templates is that the State Government should within 30 days from the commencement of the detention place before the Advisory Board the grounds on which the order has been made and representation, if any, made by the person affected by the order, and in case where an order has been made by an officer specified in sub-section (3) of section 3, also the report made by such officer under sub-section ( 4) of section 3. There is nothing, however, in the section which makes it obligatory on the part of _ the detaining ;iuthority to specify the date of the commencement of detention. Detention starts from the time a detenu is taken In most of the into custody in pursuance of the .detention order. cases it may be difficult to state in the detention order as to when the detention woui<l commence because the detaining authoritv cannot be certain at the time of the making of the detention 01der about the date on which the person ordered to be detained would be taken into custody. The possibility of the person ordered to be detained avoiding or delaying his apprehension by absconding or conr.ealing himself cannO't be ruled out. In cas.e the conten tion advanced on behalf of the petitioner were to be accepted, the detention order would cease to be enforceable in case the person ordered to be detain.eel cannot somehow be apprehended on the date mentioned in the order. We find ii difficult to draw such an inference from the language of section 10 of the Act. The words "from _the date of detention under the order'', in our opinion, have reference to 1he date of the commencement of the detention in pursuance of the detention order. A B c D E G H • - N. K. MONDAL V. WEST BENGAL (Khanna, /.) 229 A B Lastly, it has been argued by Mr. Puri that the grounds of detention are not germane to ithe objects for which a person can In this connection, we be ordered to be detained under the Act. find that, according to the grounds of detention which were fur· nished to the petitioner, he was being detained as _he was arting in a manner prejudicial to the maintenance of public order as evidenced by particulars given below : "On 12-2-71, at about 02.00 hrs., you and some of your associates being armw with bombs and other lethal weapons attacked Shri K. K.' Naskar, I.A.S., S.D.O., Bongaon and his guard by hurling bombs and thereby causing injuries to the guard constable when they came out on hearing sounds of explosion of bombs near the quarters of Shri S. C. Sarkar, "MagisttaJte 1st Class, Bongaon, at Amlapara near Bongaon Court. You, thereby, created a panic in the locality and dis turbed· the public order. (2) On 23-2-71 between 10.45 hrs. and 02.15 hrs. Bongaon Police on information searched a house at SubhaSlJalli, Bongaon and recovered 3 high explosive bombs and some explosive materials from you and your associates possession." receipt of a secret E F G H According t6 section 3 of the Act, the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of publir: order, it is necessary so to do, make an order directing ithat such person be detained. District Magistrates a:nd some other officers under sub-section (3) of section 3 of the Act have been empowered, if satisfied as provided in sub-section (1), to exercise the powers conferred by the said sub-section. According to clause (d) of sub-section (2) of sec tion 3 of the Act, for the purposes cf sub-section ( 1) the expres- . sion "acting in any manner prejudicial to the security of the State or the maintenance of public order" inter alia means : "committing, or instigating any person to commit, any offence punishable with death or imprisonm~nt for life or imprisonment for a term extending to seven y~ars or more or any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the com mission of such offence eiisturbs, or is likely to disturb, public order." It is manifest from the above definition that the expression "act· to the maintenance of public ing jn any manner prejudicial order" would include the commission of an offence under Explosive Substances Act, 1908 when the commission of such offence disturbs or is likely to disturb public order. Particulars 230 SUPREME COURT REPORTS (1973] l S.C.R. B c supplied to 1the petitioner regarding the incident of February 12.. A 1971 show that the petitioner and his associates hurled bombs near the quarter of the S.D.O., Bongaon aild caused injuries to his guard, as a result of which panic was created in the locality and public order was disturbed. The particulars regarding the incident of February 12, 1971 clearly bring the case within ambit of clause (d) of sub-section (2). of section 3 of the Act. As regards the second incident ofFebruary 23, 1971 we find that the particulars show that three high explosive bombs and explo- sive m.iterials were recovered from the possession of the peti tioner and his associ<ites on search of a house. The particulars thus show that the petitioner was guilty of an offence under the Explosive Substances Act. It is also obvious that the use of high explosive bombs was likely to dis1turb public order. The fact that the high explosive bombs were recovered from the petit; oner and his associates and taken into possession before they could be used would not take. the case out of the purview of clause (d). The earlier incident of February 12, 1971 gives a clear indication of the propensity of the petitioner to use and explode such bombs. The recovery of the high explosive bombs from the possession of the petitioner prevented him from using artd explodlng the bombs and disturbing public order. As the object of detention is prevent the detenu from acting in any maimer prejudicial to the security of the State· or the maintenance of public order, the grounds of detention supplied to the petitioner, in our opinion, should be held to be germane to the purpose for which detention In order to detain a order can legally be made under the Act. person with a view to prevent him from acting in any manner pre judicial to the security of the State or the maintenance of public order, as contc:>mplated by section 3(2)(d) of the Act, it is suffi cient that the detaining authority considers it necessary to detain him in ordet to prevent him from doing any of the acts merttioned in clause ( d). If the past conduct and antecedents of the person concerned reveal a tendency to do the acts referred to in clau·se ( d), the order of de<tehtion would be upheld, even though because of some supervening cause like prompt action by the police, the public order is not actually disturbed. D E F We, therefore, find no infirmity in the impugned detention It also cannot be said that the detention of the petitioner order. is not in accordance with law. The petition consequently fails and is dismissed. G K.B.N. Petition dismissed. •