# [1974] 3 S.C.R. 449

- **Citation:** [1974] 3 S.C.R. 449
- **Court:** Supreme Court of India
- **Decided:** 1972-11-24
- **Bench:** M. H. BEG AN!) R. s. SARK.ARIA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1974-3-s-c-r-449-6078
- **Pages:** 4

## Headnote

H9
P1eventive dete11tio,r-Matters tOktn ·into qccount for ordering dett•nJionDuty to commu11ictJtt to detenu to enable him to' explain.
. The Drder detaining the petitioner under the
Maintenance
o!
Internal
~urity Act, 1971, mentioned the sole ground that on the nil!ht of October
1 r.
1972~ the .petitioner .and his associates committed theft- of some tea chests
from a- runiiing goods trdin and that they 6cd, when challenged, leaving behind
three cheSts of tea at the P.O. In his pet:don for the isSue of a writ of
habeas· corpus the petitioner contended that it was i_mpossible to commit theft
from ._ running train as described. In the counter affidavit, it was stated that
what was meant by running train was a train which had come to a stop due
to some traffic restriction. It was also stated that the petitioner was a noto~
riqus wagon breaker operating near the Railway Station, but this allegation
was never communicated to the petitioner.
E'letr the record relating to the
detention nowhere referred to the petitioner as a 'notorious wagon breaker'.
Jn the record the incident of 11th October was mentioned, a description of
th,!;,. modus operandi of a gang of thieves operating on· passenger trains ~as
g1Yen. ·and it was . also mentioned that the activities of that gang commenced
after the incident of 11th October. There was however no· indication as to
how any information whatsoever came to the District Magistrate, who passed
the order of detention, from any source whatsoever that the petitioiier was a
member. of that gang.
·
·
Allowina the petition,
HELD : The Court is not concerned with the_ adequacy or sufficiency of
\l. ~nd of detention. Jn the present case, there is clear nexus between the
sole· grc)und for detention given and the maintenance of the eSsenti81 supplies
and services. but the ground is vague in so far as it is not apparent what is meant
by the words "the P.O." The grounds given could not enable the petitioner to
cffectivefy exercise bis constitutional right of 1naking a representation against bis
detention.
Further. matters which were nevtr oommunicated to the petitioner
have been taken into account while ordering the detention. Presuming that whatever was in the record operated against the petitioner be should have been given
fuller information of the aUegations against him. No explanation has been given
as to why that was not done.
[452 D-0]
[Those exercising drastic pawers of preventive detention should at least take
care to ascertain whether a detention is being ordered in a manner and on
materials which di:11clo.111e that it is really necessary to order a detention with
a view .to preventiniz the person to be detained from acting in a manner pre·
judicial to the objects for which preventive detention may be lawfully ordered.l
[452 C-Dl
Prabhu Dayal Deord.h v. District Magistrate, Kamrup &: Ors., A.T.R. 1974
S.C. 183, followed.
ORl\HSAL JUR1so1cTION : Writ Petition No. 845 of I9n.
Under Art 32 of the Constitution for the issue of a writ .in the
nature of habeas corpus.
S. N, lain, for the paitioner.
P. K. Chakravarty and G. s. Chatterjee, for the respondent.
45(}
SUPREME COURT REPORTS
[ 1974 1 3 S.C.R.
1'hc Judgment of the <:ourt was. delivered l>y
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-statio

## Text

A
e
c
D
E
F.
G
H
KRISHNA LAL DUTTA
l'.
THE STATE OF WEST BEN'GAL
Ftbruary 21. 1974.
[M. H. BEG AN!) R. s. SARK.ARIA, JJ.J
H9
P1eventive dete11tio,r-Matters tOktn ·into qccount for ordering dett•nJionDuty to commu11ictJtt to detenu to enable him to' explain.
. The Drder detaining the petitioner under the
Maintenance
o!
Internal
~urity Act, 1971, mentioned the sole ground that on the nil!ht of October
1 r.
1972~ the .petitioner .and his associates committed theft- of some tea chests
from a- runiiing goods trdin and that they 6cd, when challenged, leaving behind
three cheSts of tea at the P.O. In his pet:don for the isSue of a writ of
habeas· corpus the petitioner contended that it was i_mpossible to commit theft
from ._ running train as described. In the counter affidavit, it was stated that
what was meant by running train was a train which had come to a stop due
to some traffic restriction. It was also stated that the petitioner was a noto~
riqus wagon breaker operating near the Railway Station, but this allegation
was never communicated to the petitioner.
E'letr the record relating to the
detention nowhere referred to the petitioner as a 'notorious wagon breaker'.
Jn the record the incident of 11th October was mentioned, a description of
th,!;,. modus operandi of a gang of thieves operating on· passenger trains ~as
g1Yen. ·and it was . also mentioned that the activities of that gang commenced
after the incident of 11th October. There was however no· indication as to
how any information whatsoever came to the District Magistrate, who passed
the order of detention, from any source whatsoever that the petitioiier was a
member. of that gang.
·
·
Allowina the petition,
HELD : The Court is not concerned with the_ adequacy or sufficiency of
\l. ~nd of detention. Jn the present case, there is clear nexus between the
sole· grc)und for detention given and the maintenance of the eSsenti81 supplies
and services. but the ground is vague in so far as it is not apparent what is meant
by the words "the P.O." The grounds given could not enable the petitioner to
cffectivefy exercise bis constitutional right of 1naking a representation against bis
detention.
Further. matters which were nevtr oommunicated to the petitioner
have been taken into account while ordering the detention. Presuming that whatever was in the record operated against the petitioner be should have been given
fuller information of the aUegations against him. No explanation has been given
as to why that was not done.
[452 D-0]
[Those exercising drastic pawers of preventive detention should at least take
care to ascertain whether a detention is being ordered in a manner and on
materials which di:11clo.111e that it is really necessary to order a detention with
a view .to preventiniz the person to be detained from acting in a manner pre·
judicial to the objects for which preventive detention may be lawfully ordered.l
[452 C-Dl
Prabhu Dayal Deord.h v. District Magistrate, Kamrup &: Ors., A.T.R. 1974
S.C. 183, followed.
ORl\HSAL JUR1so1cTION : Writ Petition No. 845 of I9n.
Under Art 32 of the Constitution for the issue of a writ .in the
nature of habeas corpus.
S. N, lain, for the paitioner.
P. K. Chakravarty and G. s. Chatterjee, for the respondent.
45(}
SUPREME COURT REPORTS
[ 1974 1 3 S.C.R.
1'hc Judgment of the <:ourt was. delivered l>y
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 df Dum
Dum Jn. RIS when
the
train slowed down for 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
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 comn1unitv'".
-
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 representation to the State Gavernment against the detention· 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 detained as early as Jl()Ssible.
Unkler Section 10 of the Maintert.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
B
c
I>
E
F
G
· 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".
H
,
An annexure to the affidavit filed by a Special Secretary in the
Home Department of the Government of West Bengal, who was
A
B
c
D
E
F
G
H
K. L. DUTTA v. WEST BENGAL (Beg. /.)
451
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 petitioner had submitted that there was no evidence that he was identified by anybody as a participator in the incident.
In the affidavit in Qpposition to the petition, the official concerned, 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 Junccion 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 mentbers 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 incriminating articles were recove1ed from members of this gang of thieves
including the petitioner and that prosecutions were pending against
them.
. 452 _
SUPREME _Cf>Ul\T REPORT_s __
0
-l 1974 J 3 S.C.R.
_ 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!atSoever _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 against him
by the local _officials, a detention order was made on a 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
c
in a malafide manner, public confidence in them is shaken. We arc · 0
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
E
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 . could vitiate a detention order.
The grounds given cou:U
not, !n ?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 detenG
tion of petitioner to be illegal.-
We o~er that the petitioner .be
released forthwith.
-
V.P.S.
Petition allowed.,
JI
(I) A.l.R. 19(4 S.C. 183.
·-