- (1.) The petitioner in this case is being detained in Dum Dum Central Jail, pursuant to an order of detention dated August 18, 1971 made by the District Magistrate, Howrah in exercise of the powers conferred on him by S. 3 (1) and (2) of the Maintenance of Internal Security Act, 26 of 1971 (hereinafter called the Act). The District Magistrate duly reported to the State Government the fact of having made the order together with the grounds of detention and all other particulars having a bearing on the matter. The State Government considered this report and approved the detention order on August 26, 1971 when it also submitted to the Central Government the necessary report as required by S. 3 (4) of the Act. The petitioner could, however, be arrested only on June 16, 1972 as, according to the return "soon after the said order the detenu-petitioner was found to be absconding". The grounds on which the detention was ordered read : "1. On 20-4-71 at 02.00 hrs. you and your associate being armed with daggers, iron rods, bombs etc., trespassed into Shalimar Yard by scaling over the boundary wall and started looting railway materials stacked in front of D. S. P. Store, Shalimar. When resisted by the on duty R. P. F. Rakshak, you and your associates attacked him by throwing ballasts and hurling bombs at him with a view to scare him away and thus escaped with the looted railway property by terrorising him. Thus you acted in a manner prejudicial to the maintenance of public order. 2. On 21-6-71 at 03.30 hrs. you and your associates being armed with daggers, bombs etc., trespassed into Shalimar yard and committed theft of 7 bundles of Tarpauline valued at Rupees 700/- from delivery shed. When resisted by the on duty R. P. F. Rakshaks, you and your associates attacked them and hurled bombs at them with a view to scare them away and escaped with the stolen property by terrorising them. As a result of your action panic prevailed in the area which was prejudicial to the maintenance of public order. 3. On 22-7-71 at 02.30 hrs. you and your associates being armed with iron rods, daggers, bombs etc., and rushed towards the loaded wagons stabled on Shalimar-Ramkrishnapore side line with a view to loot commodities by breaking open wagons. When resisted by the on duty R. P. F. Rakshaks, you and your associates attacked them by throwing ballasts and hurling bombs with a view to scare them away by terrorising them. As a result of your action panic prevailed in the area which was prejudicial to the maintenance of public order." The order of detention as also the grounds of detention with a translation thereof in Indian language, were duly served on the petitioner on the day of his arrest. On June 29, 1972 the State Government received a representation from the petitioner which was considered and rejected on July 3, 1972. On July 5, 1972 the State Government placed the petitioner's case before the Advisory Board as required by S. 10 of the Act. The Board submitted its report on August 17, 1972 expressing its opinion that there was sufficient cause for the petitioner's detention. On August 26, 1972 the State Government confirmed the detention order as required by S. 12 (1) of the Act and duly communicated its decision to the petitioner.
(2.) Shri V. C. Parashar, learned counsel appearing as amicus curiae to assist this Court, submitted in the first instance that the gap of about 10 months between the order of detention and the arrest suggest that there was no real and genuine apprehension that the petitioner was likely to act in a manner prejudicial to the maintenance of public order. According to the submission, had the matter been grave and serious enough, the State would have taken adequate steps under Sections 87 and 88, Cr. P. C. for the purpose of securing the petitioner's early arrest. On this reasoning it was contended that the District Magistrate was in reality not satisfied that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and the case, therefore, does not fall within the purview of Section 3 of the Act. The petitioner's detention must accordingly be held to be contrary to law. We are unable to accept this contention.
(3.) Section 87, Cr. P. C. which occurs in Part C of Chapter VI of that Code merely empowers a court issuing a warrant of arrest to publish a written proclamation requiring the person concerned to appear at a specified place and time as required by that section, if the court has reason to believe that the said person has absconded or is concealing himself to evade execution of the warrant. Section 88 empowers the said court to attach the property belonging to the proclaimed person. In the case in hand no warrant was issued by any court as indeed S. 3 of the Act does not contemplate the authorities empowered to make orders of detention to function as courts. In terms, therefore, these sections may not be attracted. But even assuming it is permissible to have resort to such procedure the mere omission to do so could not, in our opinion, render the order of detention either illegal or mala fide as the suggestion connoted. The petitioner's detention cannot, therefore, be considered illegal on this ground.;