- (1.) The petitioner has been detained under the provisions of, the Maintenance of Internal Security Act in pursuance of an order passed by the Commissioner of Police of Calcutta on 24-4-1974. The grounds for detention order are: "1. That at about 05.40 hours on 9-5-73, you along with your associates about 10 in number forcibly scabed over the boundary wall of Garden Reach -Workshop, manufacturing defence materials, at 61, Garden Reach Road, Calcutta and when resisted by the Security Staff of the said workshop, you along with your said associates, being reinforced by about 25 others assembled and formed a violent mob on an open plot of land beyond the western boundary wall of the said workshop and incessantly hurled brickbats, which continued till 08.00 hours, aiming at the Security Staff of the said workshop creating serious disturbances there. As a result 3 Security Personnel viz. Gurdit Singh, Ratan Singh and Hasib Khan of the said workshop sustained injuries on their person at the aforesaid date, time and place. In consequence, fear, frightfulness and insecurity prevailed amongst the workmen and authorities of the above workshop leading to the suspension of defence production for some time in the said workshop in general and in the Drum Plant (of the workshop) in particular which was prejudicial to the maintenance of Public Order. 2. That at about 12.05 hours on 24-5-73 you along with your associates being armed with pistol and bombs formed and unlawful assembly on Transport Depot Road, Calcutta and created a great disturbance of public order by exploding high explosive bombs on Transport Depot Road, Calcutta near the workers' gate of M/s. Lipton Tea Co. at the aforesaid date and time with a view to terrorising the local people as well as the workers of the said company. As a result of your action, as aforesaid, widespread panic and confusion were created in the above area and thereby affected the maintenance of public order." It appears that in respect of the two incidents mentioned in the two grounds there were two FIRs filed before the Police. In respect of the first incident it is GR 1036/73 and in respect of the second incident it is GR 1246/73. In respect of the 1st incident case No. 102 under Sections 451, 148, 149 and 324 I.P.C. and Section 9 of the West Bengal M.P.O. Act was filed before the Police Magistrate, Alipore against the petitioner, Bibhuti Dutta and Sakti Pada Dutta. In respect of the 2nd incident case No. l18 under Ss. 148, 149 and 307 I.P.C. Sections 3 and 5 of the Essential Supplies Act and Sections 25 and 37 of the Arms Act was filed before the Police Magistrate, Alipore against the petitioner and three others, Bibhuti Dutta, Sakti Pada Dutta and Raghu Nath Show. On 24-4-1974 in both these cases the Police applied before the Magistrate requesting that the petitioner may be discharged for his detention under the Maintenance of Internal Security Act. The same action was taken against Bibhuti Dutta and Sakti Pada Dutta also. It, however, appears that detention orders in respect of both Bibhuti Dutta and Sakti Pada Dutta were revoked because the Advisory Board reported that there was no sufficient cause for their detention. It would appear that both of them had appeared before the Advisory Board whereas the petitioner did not. We do not know whether the non-appearance of the petitioner before the Advisory Board had anything to do with the different result in this case. It should, however, be mentioned that the petitioner did make a representation on 22-5-74 and this representation after it was considered by the State Government was also forwarded to the Advisory Board which submitted its report on 26-6-74. The detenu made another representation on 1-7-74 asking for personal hearing but that was not forwarded to the Advisory Board.
(2.) The validity of the order has been attacked on the following grounds: 1. That the grounds furnished to the petitioner indicate that they relate to maintenance of law and order and not the public order and therefore it could not be made the basis of the order of detention. 2. That the order of detention is vitiated as it is based on incidents which are not proximate. 3. That the provisions of the Maintenance of Internal Security Act have been used as a convenient substitute for the provisions of the ordinary law for detaining the petitioner. This argument is based on the following circumstances : (a) that his discharge was asked for on the ground that he was going to be detained under M.I.S.A-; (b) that the grounds of detention state that the petitioner had to be discharged in the criminal cases due to want of evidence for successful prosecution, while the order of discharge passed by the Magistrate states that it was made as prayed for in the application of the Police; (c) that the cases mentioned in the two FIRS are such that the petitioner could have been easily prosecuted under the laws of the land; and (d) that the petitioner is continued in detention even though Bibhuti Dutta and Saktipada Dutta, who had been arrested in connection with the same cases as the petitioner and who had been served with identical grounds of detention, had been released on the advice of the Advisory Board. 4. That the detaining authority had not applied its mind to the petitioner's case is shown by the fact that the grounds of detention show that the petitioner had to be discharged from the cases due to want of sufficient evidence for successful prosecution, whereas he was discharged because he was going to be detained, and that the grounds of detention refer to allegations which do not find a place in the FIRs. 5. That the grounds of detention are vague 6. That the Government had failed to periodically review the case of the petitioner and that has rendered his continued detention illegal. 7. That this is a case where Section 15 of the Act should have been applied and the petitioner released, and 8. That in any event the petitioner is entitled to a direction for consideration of his second representation dated 1-7-74.
(3.) Before we proceed to deal with these points it may be useful and necessary to refer to the decision of the Constitution Bench in Haradhan Saha v. State of West Bengal, (AIR 1974 SC 2154) = (1974 Cri LJ 1479).It was observed: "The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. ...The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt within Chapter VIII or the code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.. . . . . . . . In the case of Madanlal Agarwala, (AIR1974 SC 2154) it is submitted that the detention order was for a collateral purpose because he was released on 26 March, 1973, and the detention order was of the same day. It was also said that one incident was said to be the ground in the order of detention and one incident should not suffice for an order of detention. The ground given in Madan Lal Agarwala's case is that he in collusion with his father had hoarded 8 quintals 84 kg. of rice, 2 quintals 88 kg. of flour and 1 quintals 96 kg. of suji and further that he had no licence as required by Section 4 of the West Bengal Essential Foodstuffs Anti- Hoarding Order, 1966. The detaining authority said in the grounds: "It is apparent in the aforesaid facts that you in collusion with your father are likely to withhold or impede supply of foodstuffs or rationed article: essential to the community". The future behaviour of Madan Lal Agarwala based on his past conduct in the light of surrounding circumstances is the real ground of detention. It is needless to stress the obvious that Madan Lal Agarwala's acts are gravely prejudicial to the maintenance of supplies essential to the community. It was said in the case of Haradhan Saha that he was released on 25 July, 1973 and he was arrested on 7 August, 1973, pursuant to a detention order dated 31 July, 1973. It is therefore, said that the detention order was passed for collateral purposes. The grounds in the detention order are that on 19 June, 1973. Haradhan Saha with his associates was smuggling 115 bags of rice weighing 93 quintals 80 kgs. to Calcutta covered by coal by engaging lorry without any valid permit or authority. Haradhan Saha violated the provisions of West Bengal Rice and Paddy (Restriction on Movement by Night) Order, 1969, and West Bengal Rice and Paddy (Licensing and Control) Order 1967, and tried to frustrate the food and procurement policy of the Government. These grounds concluded by stating that Haradhan Saha acted in a manner prejudicial to the maintenance of supplies and services essential to the community. This again illustrates as to how these detention orders came to be passed to prevent the likelihood of such acts prejudicial to the maintenance of supplies essential to the community.";