# 18 6 DULAI. ROY v. THE DISTRICT MAGISTRATE, BURDWAN AND ORS

- **Citation:** [1975] 3 S.C.R. 186
- **Court:** Supreme Court of India
- **Decided:** 1975-01-15
- **Bench:** V. R. Krishna Iyer, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/18-6-dulai-roy-v-the-district-magistrate-burdwan-and-ors-6400
- **Pages:** 7

## Headnote

Maintenance of l11ternal Security Act, 1971. Section 3-Passing of order
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of detemion dn the same facts while petitioner was in custody as an undertrial-Arrest and dete11tion of
petitioner as soon as he
was dischargedDetention, if illegal.
In connection with two incidents of theft, two cases, one on 21-7-72 and
the other on 1-8-72, under sec. 379, Penal Code, were registered with the
police. The petitioner was not named in the F.l.R.
His complicity was
detected in the course of investig'ation..
He was consequently arrested on
3-8-72 and· sent up before the Judicial
Magistrate. On 21~8-72 when
the
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petitioner was in custody as an undertria\, and order of detention was made by
the District Magistrate, the respondent, under Sec. 3 of the Maintenance of Int~rnal Security Act, 1971, with a ".icw to preventing him from acting in any manner
prejudicial to the maintenance of supplies and services essential to the commodity.
After further investigation, the police submitted a final report and 1he petitioner was discharged in both the cases on 3-9-72. ·on the sal):l.e day,, he was
taken into custody pursuant to the order of detention which is impugned in
the writ petition instituted by him on a letter dated August 24, 1974, from
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the jail.
It was contended that the order of detention has been made to subvert
the process of ordinary penal law, as a colourable exercise or jurisdiction and
was, therefore illegal.
Accepting the contention and making the rule absolute,
HELD :
While it .is true, as an abstract legal proposition that an order
of preven1ive detention under .the Act may be validly pasSed against a person
in jail c.ustody on the same f<!_cts on which he is being prosecuted for a substantive offence in a court, such an prder of detention is more easily vulnerable-than the one against a person not in such custody-to the charge that
without there being any basis whatever for the satisfaction of the detaining
authority, which is a. condition precedent for taking action under s. 3
the
power has been misused as a cloak solely for the purpose of puni:;hing the
detenu for the substantive offence for which he was being prosecuted
by
subverting and circumventing the penal Jaw and irksome court procedure. To
make the di:tention order immune against such an attack, the detaining authority in its counter-allidavit must particularise all the material circumstances
on the basi5 of which he was satisfied as to the ne~ssity of the preventive
action despite the detenu being already in jail custody and having no freedom of action on ·the date of the detention order. Jn the present cas1~ this bas
not be~n done.
No counter.affidavit bas been filed by the person who had
made the impugned order. Even the
Deputy Secretary who has :filed
the
counter aft~r gathering some information from the record docs not disclose
all the material facts from which it would be rationally
possible
for
the
detaining authority to predi'catc that if the impugned order was not
made
against the petitioner, though in judicial custody, he could be able to indulge
in the prejudicial activities indicated in the impugned order. There is no
avertment v1hatever that the charges against the petitioner were tru'e but the
evidence cojlected against the netitioner was deficient, or, for reason other than
the charge being groundless, the prosecution of the petitioner for substantive
offences was foredoomed to failu_re.
The circumstances in which the petitioner
was discharged by the Judicial Magistrate have not been set out. A bare
statement that a "final report" was submitted by the Police is neither here nor
there. The counter-affidavit is silent with regard to the nature of this police
report and the situation in which the petitioner was discharged. It does not
say whether this repqrt had reference to deficiency or sufficiency of\evidence
or groundlessness of the charge against the petitioner.
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DULAL ROY v. DIST. MAGISTRATE (Sarkaria, !.)
187
The g

## Text

18 6
DULAI. ROY
A
v.
THE DISTRICT MAGISTRATE, BURDWAN AND ORS.
January 15, 1975
[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]
Maintenance of l11ternal Security Act, 1971. Section 3-Passing of order
• B
of detemion dn the same facts while petitioner was in custody as an undertrial-Arrest and dete11tion of
petitioner as soon as he
was dischargedDetention, if illegal.
In connection with two incidents of theft, two cases, one on 21-7-72 and
the other on 1-8-72, under sec. 379, Penal Code, were registered with the
police. The petitioner was not named in the F.l.R.
His complicity was
detected in the course of investig'ation..
He was consequently arrested on
3-8-72 and· sent up before the Judicial
Magistrate. On 21~8-72 when
the
C
petitioner was in custody as an undertria\, and order of detention was made by
the District Magistrate, the respondent, under Sec. 3 of the Maintenance of Int~rnal Security Act, 1971, with a ".icw to preventing him from acting in any manner
prejudicial to the maintenance of supplies and services essential to the commodity.
After further investigation, the police submitted a final report and 1he petitioner was discharged in both the cases on 3-9-72. ·on the sal):l.e day,, he was
taken into custody pursuant to the order of detention which is impugned in
the writ petition instituted by him on a letter dated August 24, 1974, from
D
the jail.
It was contended that the order of detention has been made to subvert
the process of ordinary penal law, as a colourable exercise or jurisdiction and
was, therefore illegal.
Accepting the contention and making the rule absolute,
HELD :
While it .is true, as an abstract legal proposition that an order
of preven1ive detention under .the Act may be validly pasSed against a person
in jail c.ustody on the same f<!_cts on which he is being prosecuted for a substantive offence in a court, such an prder of detention is more easily vulnerable-than the one against a person not in such custody-to the charge that
without there being any basis whatever for the satisfaction of the detaining
authority, which is a. condition precedent for taking action under s. 3
the
power has been misused as a cloak solely for the purpose of puni:;hing the
detenu for the substantive offence for which he was being prosecuted
by
subverting and circumventing the penal Jaw and irksome court procedure. To
make the di:tention order immune against such an attack, the detaining authority in its counter-allidavit must particularise all the material circumstances
on the basi5 of which he was satisfied as to the ne~ssity of the preventive
action despite the detenu being already in jail custody and having no freedom of action on ·the date of the detention order. Jn the present cas1~ this bas
not be~n done.
No counter.affidavit bas been filed by the person who had
made the impugned order. Even the
Deputy Secretary who has :filed
the
counter aft~r gathering some information from the record docs not disclose
all the material facts from which it would be rationally
possible
for
the
detaining authority to predi'catc that if the impugned order was not
made
against the petitioner, though in judicial custody, he could be able to indulge
in the prejudicial activities indicated in the impugned order. There is no
avertment v1hatever that the charges against the petitioner were tru'e but the
evidence cojlected against the netitioner was deficient, or, for reason other than
the charge being groundless, the prosecution of the petitioner for substantive
offences was foredoomed to failu_re.
The circumstances in which the petitioner
was discharged by the Judicial Magistrate have not been set out. A bare
statement that a "final report" was submitted by the Police is neither here nor
there. The counter-affidavit is silent with regard to the nature of this police
report and the situation in which the petitioner was discharged. It does not
say whether this repqrt had reference to deficiency or sufficiency of\evidence
or groundlessness of the charge against the petitioner.
[189E-H; J90R-B]
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DULAL ROY v. DIST. MAGISTRATE (Sarkaria, !.)
187
The grounds of detention relate to two incidents of theft simpliciter in
respect of which the petitioner could easily be prosecuted utider the penal law.
J ~1 the absence of any explanation or apparent reason as to why his prosecution .for the substantiv~ offences resulted in his discharge and as. to why the·
making of the preventive order was deemed necessarv even wbile he was in
jail custody and had no freedom of action the conclusion is inescapable that
the impugned order has been passed mechanically and as a colourable exer- .
cise of jurisdiction. f 190Hl
.
Noor Chand Sheikh v. State of West Bengal, AIR 1974. S.C. 2120 relied on.
Rameslnrar Shaw v. District Magistrate Burdwan, [1964] 4_ S.C.R. 921,
Sri Lal Shaw v. State of West Bengal. Wr:t Petition No. 453/74 decided on
4-12-1974, and Kartick Chander Guha v. State of West Bengal, A.I.R. 1974
S.C. 2149, referred to.
The failure to furnish the counter-affidavit of the authority who bad passed
the order of detention where the order of detention is attached on the ground
of being a colou.rable exerdse of jurisdiction, "may
assume the shape
of
serious infirmity leading the court to declare tbe detention illegal." [18901
Sliaik Hanif v. State of West Bengal, A.LR. 1974 S.C. 679 referred to.
ORIGINAL JURISDICTION: Writ Petition No~ 428 oi 1974.
Under Art. 32 of t.he Constitution of J ndia.
D
A. K. Gupta, for the petitioner.
E
G. S. Chattujee, for respondents.
The Judgment of the Court was delivered by
SARKARIA J.-Dulal Roy, the petitioner challenges the order, dated
August 21, 1972, of his detention made by the District Magistrate,
Burdwan under s.3 of the Maintenance of Internal Security Act, 1971
(hereinafter called the Act).
The order ~tates that it is necessary to
detain him with a view to preventing him from acting in any manner
prejudicia1 to the maintenance of supplies and services essential to the
community.
The grounds of detention communicated to the detenue run
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under:
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"1. On 21.7.72 at I a.m. you wit!\ your associates Kartick
Kannaker and others committed theft of Electric wire
from Tower Nos. 23 and 24 situated near Dhangachha
village and QY such act you cause stoppage of electric
supply which is essential for maintenance of supplies
and services to the community, in Memari area
and
its vicinity.
2. On 29-7r 72 at 2 a.m. you with your associates committed theft of Tower Members from Tower Nos. 246,
247, 248 situated on the field near Dewandighi, P. S..
Burdwan and by commission of such theft the towers
were likely to fall resulting in stoppage of supply electricity which is essential for maintenance of supplies and
services to the community, in Calcutta area and
its
suburbs."
F88
SUPREME COURT REPORTS
[1975] 3 s.c.R.
Jn connection with the above thefts, two cases, one on 21-7-72
:and the other on 1-8-1972, under s. 379, Penal Code were registered
with the police.
The petitioner was not named in the F.I.R His
complicity was detected in the course of investigation. He was consequently arrested on 3-8-72 and sent up befori:: the Judicial Magistrate.
After further investigation, the police submitted a· final report
and
the petitioner was discharged in both the cases on 3-9-72.
On the
same day, he was taken into custody pursuant to the impugned order
of detention.
Mr. A. K. Gupta appearing as amicus curiae fer the petitioner contends that the impugned order has been passed to subvert the process
-of the ordinary penal law, as a colourable exercise of jurisdiction. It
is stressed 1hat on 21-8-72 when the detention order was passed, the
petitioner was already in custody as an undertrial.
In the absence
-'Of anything in the counter affidavit showing that his custody w2,s going
to terminate. soon, proceeds the argument, it was not reawnably possible for the authority to be satisfied that the petitioner might indulge in
prejudicial activities unless he was detained. It is urged that the detaini!lg authoritly never applied its mind to satisfy itself with reg11rd to
this impera1ive requirement of s. 3 and consequently the order of detention is illegal. To highlight the casualness of the authority in. taking
the impugned action, Counsel has pointed out that the counter-affidavit has not been filed by the District Magistrate who had made the
impugnled order. In support of these contentions, learned Counsel has
relied upon Rameshwar Shaw v. DWrict Magistrate Burdwan( 1) Noor
· Chand Sheikh v. State of Wes~ Bengal( 2 ) and the recent judgment of
·this Court in Sri Lal Shaw v. State of West Bengal.(B)
Mr. Chatterjee, learned Counsel for the Respondent-Stale submits
that the mere fact that the petitioner was on the date of the detention
order in judicial custody did not stand in the way of the detaining
authority being satisfied about his propensity to act preinliicially in
future after his release from judicial custody.
It is emphasised that
the authori~y must have been aware that the petitioner was likely to
be released shortly as in fact he was released by the Judicial Magistrate
on 3-9-72, i.e. about 13 days after the making of the detention order.
Reference, in this connection, has been made to Kartick
Chander
Guha v. State of West Bengal.(4 )
Section 3 of the Act provides that the Central Government or the
State Government may if satisfied with respect to any perwn that
with a view to preventing him from acting in any manner prejudicial
to ...... , . (iii) the maintenance of supplies and services essential to
the community, it is necessary so to do, make an order directing that
such person be detained.
Tt will be seen that the satisfaction of the
authority as to the inclination of such person to act in any prejudicial
manner indicated in sub-clauses (i) to (iii) of s.3 (I )(a) is the sine
qua non for making an order of his detention.
The scheme of the
section presupposes that on the date of the order of detention or in
(1)[1964] 4, S.C.R. 921.
(2) A.LR. 1974 S.C. 2120.
(3) Writ Petition No. 453/74 decided on 4-12-1974.
( 4) A.LR. 1974 S.C. 2149.
.... .. -.. 't"
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DULAL ROY v. DIST. MAGISTRATE (Sarkaria, /.)
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the near future, the person sought to be detained has or will have
freedom of actior.. If a person therefore is· serving a long term of
imprisonment or is in jail custody as an undertrial and there is· no•
immediate or early prospect ·of his being released on bail or otherwise,.
the authority cannot legitimately be satisfied on the basis of his I past
history or antecedents ·that he is likely to indulge in similar prejudicial
activities after his release in the distant or indefinite future.
There
must be a proximate nexus between _the preventive action and the past.
activity of the detenu on which it is founded.
This Court has time and again emphasised that where in a habeas
corpus petition a Rule Nisi is issued, it is incumbent upon the State·
to satisf.y the Court that the liberty of the detenue has been taken
away strictly in accordance with law and due compliance: with
the
constitutional requirements of Article 22(5) of the Constitution. The
best informed person, therefore, to file the counter-affidavit in response
to Rule Nisi is the authority who made the detention order under
s. 3 of the Act. In Sheik H,anif v. Stare of West Bengal,(') it was
pointed out that the failure to furnish the counter-affidavit of the authority who had passed the order of detention where mala fides or eX:-:.
traneous considerations are attributed to it, "may assume the ~lnpe. of
serious infirmity leading the court to declare the detention illegal".
This observation equally holds good in a case where the detention
order is exposea to the risk of attack on the ground of being a colourable exercise of jurisdiction.
While it is true, as an abstract legal proposition, that an order. of
preventive detention under the Act may be validly passed against a
person in jail custody on the same facts on which he is being pros~cut
ed for a substantive offence in a court, such an order of detention is
more easily vulnerable--than the one against a person not in such
custody-to the charge that without there being any basis whatever for
the satisfaction of the detaining authority, which is a condition precedent for taking action under s.3, the power has been misused as a·
cloak solely for the purpose of punishing the detenu for the substantive offence for which he was being prosecuted, by subverting and
circumventing the penal law and irksome court procedure.
To make
the detention. order immune against such an attack,
the detaining
authority in its counter-affidavit must particularise all the material
circumstances on the basis of which he was satisfied :is to the neces•
sity of the preventive action μespite the detenu being already in jail
custody and having tio freedom of action on the. date of the detention·
order.
In the present case this has not been done .. No counteraffidavit has been filed by the person who had made· the impugned
order.
Even the Deputy Secretary who has filed the counter after
gathering some information from the record, does not disclose all the
material facts from which it could be rationally possible for the detaining authority to predicate that if the impugned order was not made .
against the petitioner, though in judicial custody, he could be able
to indulge in the prejudicial activities indicated in the impugned order.
(1) A.J.R. 1974 S.C. 679;
190
SUPREME COURT REPORTS
[1975] 3 s.c.R.
There. is no averment whatever that the charges against the .petitioner
were true but the evidence collected against the petitioner was deficient, or, for reasons other than the charge being groundles,, the
prosecution of the petitioner for substantive offences was foredoomed
to failure.
The circumstances in which the petitioner was discharg-
•.ed by the Judicial Magistrate have not been set out.
A bare state·
ment that a "final report" was submitted by the Police is neither here
nor there.
Such a report.coulJ have been made by the Police in any
of the situations referred' to in Sections 169, I 70. and 17 3 of the
·Code of Criminal Procedure, 1898.
Section 169 envisages two di !ferent situations in which an accused person can be released.
On~ is
·when there is not sufficient evidence against him.
The other is when
·'110 reasonable ground or suspicion is revealed by the investigation in
regard to his being concerned in the commission of the offence.
Such
·a release can be made by the investigating olftcer himself without
~•ending the accused before a Magistrate. Section 170 contemplates
.a situation where there is sufficient evidence or reasonable ground to
jt:stify the forwarding of the accused under custody for trial to a
Magistrate.
It is s.173 that provides .for a final report, popularly
'known as Polic.e Challan or charge-sheet, which is submitted in the
prescribed form after completion of the investigation. The counteraffidavit is silent with regard to the nature of this police report and
ihe situation in which the petitioner was discharged.
It does not say
wliether this report had reference to deficiency or sufficiency of eviden-
•ce or groundlessness of the charge against the petitioner.
Mr. Chatterjee submits that since the petitioner was about 13 days
after the impugned order, in fact, discharged by the Judicial Magisirate, it should be presumed that his discharge was due to paucity of
·evidence and not on account of the charge being baseless.
We are afraid no such conjecture can be drawn when the lib<:rty
<Jf a citizen is at stake. The counter-affidavit apart, we asked Mr.
'Chatterjee if he could show us any official record to support his con·
tention.
Counsel was unable to do so.
He however, submitted that
if a sufficiently long adjournment was granted, he would be able to
fornish a better and comprehensive affidavit of the officer who had
passed the impugned order, clarifying all these obscurities. The case
·was instituted on a letter dated August 24,
1974 "from the detenu.
Rule Nisi was issued on October 3, 1974 for November 25, 1974.
·On the latter date no counter affidavit was praduced, and on the request of the State Counsel an adjournment was granted to enable the
Resoondents to file the return.
Jnspite of this the counter filed is
1leither clear and complete nor by the best informed person. We are
therefore, not disposed to put a further premium on this casualness
·and laxity on the part of the Respondent.
The grounds of detention relate to two incidents of theft simpliciter in respect of which the petitioner could easilv be prosecuted
-under the penal law.
In the absence of any explanation of appar.ent
reason as to why his prosecution for the substantive offences resulted
in his discharge and as to whv the making of the preventive order
·was deemed necessary even while he was in jail custody and had no
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DULAL ROY v. DIST. MAGISTRATE (Sarkaria, J.)
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freedom ~f action, the conclusion is in ;:scapable that the impugned
order has been passed mechanically and as a colourable exercise of
jurisdiction.
In the view that it is incumbent on the detaining authority in such
cases to disclose to the court all the matf,rial circumstances on which
its subjective satisfaction 'is based, we are fortified by the observations
of this Court in Noor Chand Sheikh v. State · of ' West
Bengal,
(supra) wherein A. C. Gupta J. speaking for that Bench said :
·
"We do not think it can be said that the: fact that the petitioner was discharged from the criminal cases is entirely
irrelevant and of no significance; it is a circumstance which
the detaining authority cannot altogeth.er disregard,
In the
case of Bhut Nath Mate v. State of West Bengal(') this
Court observed :
" .... detention power cannot be quietly used to subvert,
supplant or to substitute the punitive law of the Penal Code.
The immune expedient of throwing into a prison cell one
whom the ordinary law would take care of, merely because
it is irksome to undertake the inconvenience of proving guilt
in court is unfair abuse."
If, a_s the petitioner has asserted, he was discharged because there was no material against him and not because
witnesses were afraid to give evidence against him, there
would be apparently no ratiom' basis for the; subjective
satisfaction of the detaining authority.
It is for the detaining
authority to say that in spite of the discharge he was satisfied, on some valid material, about the petitioner's complicity in the criminal acts which constitute the basis of the
detention order. But, as stated already, the District J\fagistrate, Maida, who passed the order in this case has not
affirmed the affidavit that has been filed on behalf of the
State.
Apart from the question whether the explanation is satisfactory, the fact remains that in 1his case there is nothing to
show that tber.: was any rational material for the subjective
satisfaction of the authority who passed the order of detention. Therefore, we find it difficult in the' circumstances of
this case to reject the contention that the order of detention
was passed mechanically and was a colourable exercise of
the power conferred by the Act."
The ratio of Kartik Chandra Guha v. State
of West
Bengal
(supra), cited by Mr. Chatterjee does not advance his case.
There,
the District Magistr<\te who had passed the detention order had
clearly explained and disclosed-en affidavit all the material circumstances on which his satisfaction was based, and further averred :
(1) A.LR. 1974 S.C. 806.
192
SUPREME COURT REPORTS
[1975J 3 B.C.R.
"Having regard to the activities o:E the detenu as disclosed
in the grounds of detention and having regard to the possibility of (his) being enlarged on bail, I was satisfied that th1~
detenu should be detained under the Act."
In the present case, there is nothing in the counter-affidavit to
show that on 21-8-1972, the date of the detention order, the petitioner was about to be released on bail or discharged for deficiency
of evidence or difficulty of its production in court. Nor is ther1! any
averment that the District Magistrate was otherwise satisfied from
credible information received that the charges against the detenu were
true.
In the light of what has been said above, we would quash the impugned order, make the rule absolute and direct the lease of the petitioner.
VM.K.
Petition allowed,
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