# [1974] 3 S.C.R. 613

- **Citation:** [1974] 3 S.C.R. 613
- **Court:** Supreme Court of India
- **Decided:** 1974-03-15
- **Case number:** Writ Petition No. 1977 of 1973
- **Bench:** H. R. Khanna, V. R. Krishna Iyer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1974-3-s-c-r-613-6045
- **Pages:** 11

## Headnote

Mai11rena11ce of Internal Security Act, 1971-Ss. 3 (1) an:l 3 (2) • If detention
af1er discharge
in criminal -cases ma/a fide-Link between criminal activity and
detention-Detention without duration if invalid-Public disorder-If acts aifned
at a single person can disturb public order.
Pursuant to an order of detention under s. 3 (l)(a) (ii) read withs. 3 (2) of the·
Maintenance of Internal Security Act, 1971 the petitionet' was arrested for hurling
soda water bottles, brickbats and bombs indiscriminately on a group of persons on
different dates. The order of detention said that if left free and unfettered the pe~·
titioner was likely to continue to disturb maintenance of public disorder by acting
in a similar manner. In an earlier criminal case the petitioner was discharged by
the court since no witness dared to depose against him in open court. Thereafter
the petitioner was detained under the Act.
Jn a petition under Art. 32 it was contended : (I) that the detention was mala·
fide because the petitioner was detained under the Act after his discharge by the
court for want of evidence (2) that there had been a long interval of nine months
between the criminal incidents and the detention order, (3) that the order of detention which did not specify a period was violative of s. 12 of the Act and (4)
that the detention was founded on prevention of public disorder while the acts
imputed to th~ petitioner v."ere aimed at a particular person, not the gen~ral public.
Dismissing the petition,
fIELD : Merely because the detaining authority had chosen to base the
order of detention on.the discharge of the petitioner by the court for want of evidence it cannot be held that the order was bad in law. This branch of jurispru·
dence, as interpreted by this Court, has made it futile for a detcnu to urgethat because the grounds of detention have been the subject matter of criminal
cases which have ended in discharge, therefore,
the order of detention was ma/a·
fide.
The basic imperative of proof beyond reasonable doubt does not apply
to the subjective satisfaction component of imprisonment for reasons of internal
security. There may be extreme cases where the court had held a criminal case to·
be false and the detaining authority with that judicial pronouncement before him·
may not reasonably clain1 to be satisfied about prospective prejudicial activities
based on what a court has found to be baseless. In the present case where the
order of discharge was made purely for want of evidence on the scope that witnesses
were too afraid to depose against a desperate character cannot come under the·
exceptions carved out by the court to this category. [616C-FJ
(2) It is true that there must be a live link between the grounds of criminal'
activity alleged by the detaining authorit·Y and the purpose of detention. This
credible chain is snapped if there is too long and unexplained an interval between·
the offending acts and the order of detention. If the detaining authority takes the·
chance of conviction and, when the court verdict goes
against it, falls back on
its detention pawcr to punish one whom the court would not convict, it is an abuse·
and virtual nullification of the judicial proc.-ess. But if honestly finding a dangerou~ f?CCSOD ·getting away
~th if. by overawing wit_nesses or concealing the
comm1ss1on cleverly, an authority thinks on the matenaJ before him that there is
likelihood of and need to interdict public disorder at his instance he may validly
direct detention. Jn the present case the acts were 'serious being bomb hurling
and brickbat 'throwing in public places creating panic. involvement of the petit~oner was ~is~~red ~nly during the investigation of the offences. No ground:
C"x1sts for dtsm1ss1ng this statement as sham or factitious. [616G-H;617Cj
614
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
M. S. Khan v. C. C. Bose, A. I. R.
1972 S.C. 1670, Ashim Ku1nar v. State of
West Bengal, A.I.R. 1972 S.C. 2S6l and Sahib Singh Dugal v. Union of

## Text

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613
GOLAM HUSSAIN ALIAS GAMA
l'.
THE COMMISSIONER OF POLICE, CALCUTTA, AND OTHERS
March 15, 1974
[H. R. KHANNA AND V. R. KRISHNA IYER, JJ.]
Mai11rena11ce of Internal Security Act, 1971-Ss. 3 (1) an:l 3 (2) • If detention
af1er discharge
in criminal -cases ma/a fide-Link between criminal activity and
detention-Detention without duration if invalid-Public disorder-If acts aifned
at a single person can disturb public order.
Pursuant to an order of detention under s. 3 (l)(a) (ii) read withs. 3 (2) of the·
Maintenance of Internal Security Act, 1971 the petitionet' was arrested for hurling
soda water bottles, brickbats and bombs indiscriminately on a group of persons on
different dates. The order of detention said that if left free and unfettered the pe~·
titioner was likely to continue to disturb maintenance of public disorder by acting
in a similar manner. In an earlier criminal case the petitioner was discharged by
the court since no witness dared to depose against him in open court. Thereafter
the petitioner was detained under the Act.
Jn a petition under Art. 32 it was contended : (I) that the detention was mala·
fide because the petitioner was detained under the Act after his discharge by the
court for want of evidence (2) that there had been a long interval of nine months
between the criminal incidents and the detention order, (3) that the order of detention which did not specify a period was violative of s. 12 of the Act and (4)
that the detention was founded on prevention of public disorder while the acts
imputed to th~ petitioner v."ere aimed at a particular person, not the gen~ral public.
Dismissing the petition,
fIELD : Merely because the detaining authority had chosen to base the
order of detention on.the discharge of the petitioner by the court for want of evidence it cannot be held that the order was bad in law. This branch of jurispru·
dence, as interpreted by this Court, has made it futile for a detcnu to urgethat because the grounds of detention have been the subject matter of criminal
cases which have ended in discharge, therefore,
the order of detention was ma/a·
fide.
The basic imperative of proof beyond reasonable doubt does not apply
to the subjective satisfaction component of imprisonment for reasons of internal
security. There may be extreme cases where the court had held a criminal case to·
be false and the detaining authority with that judicial pronouncement before him·
may not reasonably clain1 to be satisfied about prospective prejudicial activities
based on what a court has found to be baseless. In the present case where the
order of discharge was made purely for want of evidence on the scope that witnesses
were too afraid to depose against a desperate character cannot come under the·
exceptions carved out by the court to this category. [616C-FJ
(2) It is true that there must be a live link between the grounds of criminal'
activity alleged by the detaining authorit·Y and the purpose of detention. This
credible chain is snapped if there is too long and unexplained an interval between·
the offending acts and the order of detention. If the detaining authority takes the·
chance of conviction and, when the court verdict goes
against it, falls back on
its detention pawcr to punish one whom the court would not convict, it is an abuse·
and virtual nullification of the judicial proc.-ess. But if honestly finding a dangerou~ f?CCSOD ·getting away
~th if. by overawing wit_nesses or concealing the
comm1ss1on cleverly, an authority thinks on the matenaJ before him that there is
likelihood of and need to interdict public disorder at his instance he may validly
direct detention. Jn the present case the acts were 'serious being bomb hurling
and brickbat 'throwing in public places creating panic. involvement of the petit~oner was ~is~~red ~nly during the investigation of the offences. No ground:
C"x1sts for dtsm1ss1ng this statement as sham or factitious. [616G-H;617Cj
614
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
M. S. Khan v. C. C. Bose, A. I. R.
1972 S.C. 1670, Ashim Ku1nar v. State of
West Bengal, A.I.R. 1972 S.C. 2S6l and Sahib Singh Dugal v. Union of btdia,
[1966] I S.C.R. 313, followed.
.
(3) The argument that detention without defined duration is ipso j:1r~ invalid
cannot be sustained: No responsible government .should or would be irresponsive
to the claim of citizen's freedom.
(622FJ
· Suna Ullah v, State (If J & K, A.LR,
1972 S.C. 2431, 2433, Dattatreya Moreshwar Pangarkar v. State of Bo1nbay, [1952]
$.C.R. 612, S. Krishnan v.
The State of Madras, [1951] S.C.R. 621; 629, and
Prabhu Dayal v. Distnct Magistrate, Kamn1p, [1974] 1S.C.C.103; 114, referred to.
(4) The nature of the act, the circumstances of its commission, the impact on
people around and such like factors constitute the pathology of public disorder.
These acts cannot be isolated from their public setting nor is it possible to analyse
its molecules as in a laboratory but take its total effect on the flow of orderly life:
It may be a question of the degree and quality of the activity of the sensitivity of the
situation and the psychic response· of the involved people. To dissect further
is to defeat the purpo~ of social defence which is the paramount purpose of pre·
ventive detention. [623B·C]
Mohd. Subrati v. State of West Bengal, ll913J 3 S.C.C. 250; 256, referred to.
ORIGINAL JURISDICTION : Writ Petition No. 1977 of 1973.
Under Art. 32 of the Constitution of India for issue of a writ
in the nature of habeas corpus.
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D. N. Mukherjee and M. M. Kshatriya, for the petitioner.
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f. K. Chatterjee and G. S. Chatterjee, for the respondents.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-A few· issues of son1e moment, in the con~
text of civil liberties have been argued in this application for habeas
corpus by Shri Mukherjee as amicus curiae.
The facts are disquieting
at least for the reason that the petitioner an aged ailing man around
74, has been under detention since 1973 and, previous to it, had been
facing a criminal prosecution which ended in a discharge on the date
the detention order was clamped down on him; and counsel pressed
the poignant circumstance that the ultimate order of Government
dated September 28, ,1973 merely confirms the detention, being unlimited in duration and ~unspeaking on the terminus ad quem for the
incarceration.
The relevant facts may be stated before discussing the highlights
-of the arguments. The.Commissioner of Police, Calcutta, passed the
initial order of detention dated July 19, 1973 on the petitioner, Golam
Hussain alias Gama, under s. 3(1) (a) (ii) read with sub-section (2)
of the Maintenance of Internal Security· Act, 1971 (Act 26 of 1971)
(hereinafter referred to as· 'the Act').
The grounds which induced
the detaining authority to pass the order were communicated tho
same day.
They have been set out by the State as annexure to the
affidavit filed in opposition to the petition and read thus :
"J. On 8-10-72 at about 22·25 hrs., you along with
your associates Achche Lal Show of 1, Manickotolla Bazar
Lane, Satya Narayan Jaiswal of 123/2, Acharya Prafulla
Chandra Road, and others, all being armed with bombs, sodawater bottles created a great disturbance of public order on Gouri
Sankar Lane in front of premises No. 8 by· hurling oombs
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VOLAM HUSSAIN v. COMMR. POLICE (Krishna Iyer, J.)
615
indiscriminately with a view to attack one Jiban Paul of 8,
Oouri Shankar Lane and his group in retaliation to an earlier
quarrel that took place with the· said Jiban Paul at 8 Gouri
Sankar Lane with your associates· Satya Narayan Jais_;,al and
others. The incident terrorised the locality and threw out of
gear the notmal life ·stream of the residents of the said locality
amountingtopolice order.
·
2. On 9-11-72 sometimes betweeen 04-45 hrs. you along with
your associates Ratish Pradhan alias Laltu of 23/IA, Abinash
Kaviraj St., Benode Kr. Jaiswal. of 34B, Gulu Ostagar Lane
and other all being armed with brickbats, soda-water bottles,
bombs poles, created a great disturbance of public order on
Oouri Sankar Lane and Abinash Kaviraj Street by hurling
soda-water bottles, brickbats jndiscriminately with a view to
overawe the organisers of the Kalipuja that took place in front
of 8 Gowi Sankar Lane and thereby to terrorise the locality.
As a result the lights of the above puja pandals were damaged.
This was in sequel to an incident that took place earlier at about
04-30 hrs when your associates Benode Kumar and others
threw beer bottles at the Kalipuja panda! at 8, Gouri Sankar
Lane, where some females were then dancing, which was then
protested by the local people and the organisers of the said puja.
And ifleft free aad unfettered you are likely to continue to
disturb manitenance of public order by acting in a similar
manner as aforesaid."
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As required by the statute, the fact of detention was communi- '
catcd to the State Government which in turn reported to the Central
Government.
The case was placed before the Advisory Board on
August 13, 1973 and when the representation of the detenu was received it was duly considered and negatived by the State Government which thereafter made it over to the Advisory ·Board. After
adverting to the facts, the Board advised continuance of the detention on September 21, 1973.
The consequential order confirming
the detention was made by the State Government on September 28,
1973 and communicated to the detenu by the middle. of October, 1973.
We see no statutory shortcoming in the time sequence set out above.
But other grounds of attack have been levelled against the' order which
deserve a Closer look.
Shri Mukherjee urged that although two criminal cases were started
in connection with the two incidents. constituting the grounds for
the detention, the petitioner's name was not even mentioned in the
first information reports, and he was produced before the Magistrate
only on July 5, 1973, and so the order based on those accusations
was too irrational to be bona fide. The Commissioner of Police
who passed the detention order has stated in his affidavit that there
wet'c cases connected with the incidents of October 8th and November
9th, but the detenu could not be arrested until July 4 1973.
It is
not denied that the petitioner's na~e was not in the fi;st information
616
SUPREME COURT REPORTS
[ 1974 I 3 S.C.L
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report, but he was apprehended later on the basis of evidence gathered
during the investigation of the criminal case.
The Commissioner
admits that the detenu was discharged by the Court "as no witness
dared to depose against the detenu ·in open
court."
According
to him "the said order of discharge was made on tho prayer of the
police on July 19, 1973," and thereafter the petitioner was preventively
detained.
Could such an order be castigated as malafide and oblique
resort to the inscrutable order of detention when the prospects in the
criminal case became bleak 1 This charge . has been .repudiated
by the Commissioner .on oath and we are not able to hold with the
petitioner that merely because the detaining authority has chosen
to pass the order on the discharge of the petitioner by the court for
want of evidence, the order is bad in law.
The branch of
jurisprudence bearing on prohibitory detention has been crystallised
by now and it is no longer a valid contention that because the accused
has been discharged in a criminal case the ground of charge cannot
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· be relied upon by the appropriate. authoritY for passing an order of
detention. The former relates to the punitivo..branch of the criminal
law and relates tothe past commission, the latter to the preventive
branch of social defence and protects the community from future
injury. ·Whether we like it or not, this branch of jurisprudence,
as interpreted by this Court has made it futile for a detenu to urge
that because the grounds of detention have been the Subject matter
of criminal cases which have ended in discharge, therefore, the order
of detention is malafide. The basic imperative of proof beyond reasonable doubt does not apply to the 'subjective satisfaction• component
of imprisonment for reasons of internal security.
To quarrel with
such a, proposition is to challenge the wisdom of Parliament. Of
, course, we can visualise extreme cases where a court has held a criminal
case to be false and a detaining authority with that judicial pronouncement before him may not reasonably claim to be satisfied
about prospective prejudicial activities based on what a court has
... found to be baseless.
But the present case where the order of
discharge is made purely for want of evidence oil the score that witnesses
were too afraid to depose against a desperate character cannot come
under this exceptional category.
Another submission, equally an exercise in futility, made before
us is that there has been a long interval of nine months between the
criminal incidents of October and November, 1972 and the detention
order of July, .1973.
Counsel hopefully relied on recent decision
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of this Court in Lakshman Khatik v. State ~f West Bengal (1) and an
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earlier decision in Rameshwar Shah v. District Magistrate Burdwan(2).
It is true that there must be a live link between the grounds of criminal
activity alleged by the detaining authority and the purpose of detention, namely, inhibition of prejudicial activity of the species specified
in the statute.
This credible chain is snapped if there is too long
and unexplained an interval between the offending acts and the order
of detention. Such is the ratio of proximity in Lakshman Khatik(l),
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No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because l~ng ago the detenu had
(1) Writ Petition No. 344 of 1972; Judgment on 26·2-74. (2) [1964] 4 S.C.R. 921.
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GOLAM HUSSAIN v. COMMR. POLICE (Krishna Tyer, /.)
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done something evil. To rule otherwise is to sanction a simulacrum
of a statutory requirement.
But no mechanical test by counting
the months of the interval is sound.
It all depends on the nature
of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long on the reason for the delay
in taking preventive action, like information of partiClpaticn being
available only in the course of an investigation.
W~ have to investigate whether the causal connection has been troken in the circumstances of each case.
If the detaining authority takes the
chance of conviction and,
when the court verdict goes against it, falls back on its detention power
to punish one whom the court would not convict, it is. an abuse and
virtual nullification of the judicial process.
But if honestly finding
a dangerous pmon getting away with it by overawing witnesses or
concealing the commission cleverly an
authority thinks on the material
before him that there is likelihood of and need to interdict public
disorder at his instance he may validly difect detention.
The distinction is fine but real.
In the present case, the acts are serious,
being bomb hurling and brick-bat throwing in public places creating
panic.
The involvement of the petitioner is discovered only during
the investigation of the offences.
The witnesses are scared away
from deposing.
The Commissioner swears that in these special
circumstances he did form the satisfaction requisite for ordering
preventive detention.
No ground exists for dismissing this statement
as sham.or factitious.
It is one thing to say that a more subjective
satisfaction is sufficient to deprive a person of a fundamental freedom;
it is another to reject that satisfaction as specious and non-existent.
Parliament makes the law and is responsible for it; the court only
applies it, as it must.
We have, therefore, to reject the plea that
because the criminal case has failed the detention must be bad.
M. S. Khan v. C. C. Bose, (t I Ashim Kumar v. State of West Benga/(2),
and Sahib Singh Dugal v. Union of lndia\0) are but three among many
cases takhlg this view.
We follow these precedents.
The next serious contention of Shri Chatterjee is that an order
of detention which does not specify a period is violative of s. 12 of
the Act. We may reproduce the relevant provisions which are of
ancient vintage, being wholly or substantially in pari materia with earlier corresponding preventive detenfam sections. Nor is the position
oflaw canvassed forres integra. Section 12 and 13 of the Mamtenance
of Internal Security Act, 1971, as amended, read as follows :
"12(1) In any case where the Advisory Board has reportc~
that there is in its opinion sufficient cause for the detention c•f
a person the appropriate Government may confirm the detention ord~r and continue the detention of the person conoernod
for such period as it thinks fit.
(2)
(ll AJ.R. t972 S.C. 1670.
(2) A.l.R. 1972 S.C. 2561.
(3) [195() I S.C.R. 313.
I l-M4 SSup.Cl/75
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SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
13. The maximum period for which any person may be detained jn pursuance of any detention order which has been co1ifirmed under section 12 shall be twelve months from the date of
detention, or until the expiry of the Defence oflndia Act, 1971
whichever is later ;
Provided that nothing contained in this section shall affect
the power of the appropriate Government to revoke or modify
the detention order at any earlier time."
Section 1(3)ofthe Defence oflndiaAct, 197!, laiddown the duration
of that Act and said that that Act shall remain in force for the duration of the proclamation of emergency and a period of six months
thereafter.
Section 13 of the MISA, as amended, thus provided
that the maximum period of detention under the Act shall be twelve
months from the date of detention or until the expiry of a period
of six months after the cessation of the proclamation of emergency,
whichever is later.
The Court recently dismissed a similar argument in these words
in Suna Ullah v. State of J & K (I) :
"It is urged that the failure of the State Government to specify
the period of detention introduces an infirmity in the detention
of the petitioner.
This contention, in our opinion, is without
any force.
According to sub-8"ction (l) of Section 12 of the Act,
in any case where the Advisory Board has reported that there
is, in its opinion, sufficient caus~ for the detention of a person,
the Government may confirm the detention order and continue
the detention of the
person concerned for
such
period
as
it
thinks
fit.
Section
13
of
the
Act
s·~eci
fies the maximum period of detention. According to that section
the maximum period for which a person may be detained in
pursuance of any detention order, which has been eonfirmed
under Section 12, shall be two years from the date of detention.
It is further provided that nothing in the section shall effect
the power of the Government to revoke or modify the detention
order at any earlier time.
It is, in our opinion, difficult to infer
from the language of Section 12 of the Act that the State Government while confirming the detention order should also specify
the period of detention.
All that the section requires is that,
if the Advisory Board has reported that there is, in its opinion,
sufficient cause for the detention of the person, the Govern1nent
may confirm the detention order.
There is nothing in the sec~
tion which enjoins upon the Government to specify the pzriod
of detention order.
The concluding words of sub-section (1)
of Section 12, according to which the Govern1nent may continue
the detention of the person concerned for such period as it thinks
fit, pertain to and embody the consequences of the confirmation
of the detention order. It is, however, manifest that the period
for which a person can be detained after the confirmation of the
detention order is subject to the limit of two years, which is. the
maximum period of detention for which a person can be detained
vide section 13 of the Act.
(I) A.LR. 1972 S.C. 2431; 2433.
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GOLAM llUSSAIN v. COMMR. POLICE (Krishna Iyer, I.)
619
Apart from the above, we are· of the opinion that it is not
always practicable and feasible for the State Government at the
time of confirming the detention order to specify the period
of detention.
The continued detention of the detenu, subject
to the maximum period-prescribed by the Act, depends upon
a variety of factors and the State Government would have to
take into account all the circumstances including fresh developments and subsequent events in deciding whether to keep
the detenu in detention for the maximum period or to release
him earlier.
It has accordingly been provided in sub-section
(2)ofSection 13 of the Act that the State Go.vernment would
have the power to revoke or modify the dete.ntion order at any
time earlier than the exj>iry of two years from the date of detention."
·
The leading case, if we may say so, is Dattatraya Moreshwar
Pangarkar v. State of Bombay(!) . The majority held that an order
of detention under a substantially like provision was not invalid merely
because the order did not contain the period of imprisonment. Mahajan,
J., as he· then was, held a contrary ·view.
But even the majority
was split on their construction of the section.
Das, J., as he then
was, read the section to imply no obligation to write into the order
the duration, even though it may be desirable.
The learned Judge
observed :
"It is said that the section should be construed irrespective
of whether it occurs in a temporary statute or a.permanent one,
and it is urged that if the statute were.a permanent one the section
on the aforesaid interpretation, would have permitted an indefinite detention. . The answer is given by Mahajan J., in the
following passage in his judgment in S. Krishnan v. The State of
Madras (supra) at page 639 with which concurred(2) :-
"It may be pointed out that Parliament may well
have thought that it was unnecessary to fix any maximum period of detention in the new statute which
was of a temporary nature and whose own tenure of
life was limited to one year.
Such temporary statutes
cease to have any effect after they expire they
automatically come to an end at the expiry of the
period for which they have been enacted and nothing
further can be done under them.
The detention of
the petitioners therefore is bound to come to anend automatically with the life ofthe statute and in these circumstances Parliament may well have thought that it
would be wholly unnecessary to legislate and provide a maximum period of detention for those detained
under "this law."
For all I know, such drastic and extensive power to continue the
detention as long as it may think fit may not be given by Parliament to the executive Government in a permanent statute.
(I) (1952) S.C.R. 612.
(2) (1951] S.C.R. 621; 629. J
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SUPllEMB COUl.T llEPOJlTS
[ 19741 3 S.C.L
But if it does think fit to do so, it will not be for the Court to.
question the knowledge, wisdom or patriotism of the Legislature
and to permit its dislike for the policy of the law to prevail over
the plain meaning of the language
used by the
Legislature.
Apart from this consideration, there is a period specified in the
sub-section itself, for as soon as the appropriate Government
will cease to think fit to continue the detention it will revoke
the detention order under Section 13 and the period of detention will automatically come to an end."
..
"If the specification of the period of detention is not at all
sacrosanct and the appropriate Government may nevertheless
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continue the detention as long as it thinks fit to do so, why is
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the specification of a. period to be regarded as virtually or at all
necessary? So far as the detenu is concerned, his detention will
not be any more definite and less irksome if it is open to the
appropriate Government to continue the detention by an indefinite number of orders made from time to time until the
expiry of the Act itself by affiux of time in the case of a temporary statute or by its repeal in the. case of a permanent Act. It
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is said that if we insist on a specification of a definite period
when the confirmatory order is made and thereafter each time the
period of detention is extended then the appropriate Government
will have to apply its mind to the case
of the detenu
before it will make an order for further continuation of the detention, but that if we say that no. time need be specified, the
appropriate Government will lose sight of the case and the detenu
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will be detained indefinitely. I do not see why we should impute
such dereliction of duty to the appropriate Government; but
even if we do so and insist on the spocification of the period of
detention we shall perhaps be driving the appropriate Government to fix the longest permissible period of detention ending
with the expiry of the Act itself and then to lose sight of the case
of the detenu. That, I apprehend, will do no good to the
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detenu."
"In any event, the considerations of hardship
urged upon
us may make .it desirable that a period of detention should be
fi<ed but this cannot alter the plain !\leaning of the language
of the section :
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Patanjali Sastri, C. J., concurred. However, Mukherjea J. struck
a different note ;
"The question now is whether the omission to state the period
of further
detention
while confirming the
detention
order under section 11(1) of the Preventive Detention Act makes
the detention illegal? The point1 is n<>t free from doubt, hut
having regard to the fact that the new Preventive Detention Act
is a temporary statute which was to be in force only up to the
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!st of April, 1952, and has only· been recently extended to a
further period of six months and no detention under the Act
can continue after the date of exviry of the Act, I am inclined to
hold that non-svecification of the further period in an order
under section 11(1) of the Act does not make the order of
detention a nullity. If no period is mentioned, the order
might be taken to imply that it would continue up to the date of
the expiration of the Act itself when all detentions made under
it would automatically come to an end. Of course, the appropriate Government is always at liberty to terminate the order of
detention earlier, if it considers proper' in exercise ofits general
powers under section 13 of the Act."
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."It is perfectly true that an order for detention for an indefinite period is repugnant to all notions of democracy and individual
liberty,
bi;t the indefiniteness in the case of an
order made under section 11(1) of the Preventive Detention
Act is in a way cured by the fact that there is a limit set to the
duration of the Act itself, which automatically prescribes a limit of
time beyond which the order cannot operate. In my opinion,
section 11(1) of the Preventive Detention Act does contemplate
that a period should be mentioned during which the further
detention of the detenu is to continue and the Government should
see that no omission occurs in this respect, but I am unable to
hold that this omission alone would make the order a
nullity
which will justify us in releasing the detenu."
Chandrasekhara Aiyar J. concurred. -
The undercurrent of judicial unease at loss d
citizen's liberty
because the Executive subjectively opined that way is evident in the
pages of the report, but the brooding feeling that the preventive detention legislation was a short-Jived statute and-all imprisonment without
trial would terminate at a near date was writ large in all the opinions.
After all civil liberty ordinarily ends where detention without trial
begins and commitment to the rule of law receives a rude shock where
a permanent statute authorises long term.gaol confinement. That is
why courts have been .strict even on procedural steps. Mathew J .
. recently observed in Prablzu Dayal v. District Magistrate, Kamrup(I):
"The facts of the case might induce mournful reflection how
an honest attempt by an authority charged with the duty of taking
prophylactic
measure
to secure the maintenance of supplies
and services· cs•ential to the community has been frustrated by
what is popularly called a technical error. We say and that we
think it is necessary to repeat, that the gravity of the evil to the
community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a
citizen, except in accordance with the procedure established by
the Constitution and the laws; The history of personal liberty
is largely the history of insistence on observance of procedure.
{I) W. P. No. 1496 of 1973; judgment dated October 11, 1973.-(1974!
1 sec 103, 114.
622
SUPREME COURT REPORTS
(1974] 3 S.C.R.
Observance of procedure has been the',bastion against wanton
assaults on personal liberty over the years. Under our Constitution the only guarantee of personal liberty for a person is
that he shall not be deprived of it except in accordance with the
procedure established by law. The need today for maintenance
of supplies and services essential to the community cannot
be over-emphasized. There will be no social security without maintenance of adequate supplies and services essential
to the community. But social security is not the only goal of
good society. There
are
other
values
in
a society.
Our country is t4king singular pride in the democratic ideals
in pem>110l liberty. It would indeed be ironic if, in the name of
,ocial security, we would sanction the subversion of thi5 liberty.
We do not pause to consider whether social security is more
precious than personal liberty in the scale of values. For.
any judgment as regards that would be but a value judgment
on which opinions might differ. But whatever be its impact
on the maintenance of supplies and services essential to the
community, when a certain procedure is prescribed by the
Constitution or the laws for depriving a citizen of his personal
liberty, we think it our duty to see that that
procedure is
rigorously observed, however strange this
might sound to
some ears."
Tl)e basic feature of the Act as distinguished from -its predecessor
is that it is no longer a temporary law and even the duration oftbe detention can be distant and considerable. We have misgivings about
these anti-personal freedom facets but regard hopefully the presence
and use of the power to revoke the detention on a review at any time.
Moreover there is no reason to think that this extraordinary power
· will be used indiscriminately or inordinately by a democratic government. A tenable interpretation that a detention order of prolonged
and unspecified duration has to be abandoned for the time not merely
because of the pressure of precedents but because we are assured by
the State's counsel that the fulfilment of the imperative obligation
of the State to review from time to time the changing social situation
and the individuals' criminal potential tipping the scales in favour
of enlargement of the detenu is taking place. No responsible government sho~1ld or would be irresponsive to the claim of citizen's freedom
and the argument that deten1ion without defined duration is ipso
Jure invalid cannot be sustained.
Shri Chatterjee took up the further position that the detention in
the case on hand was founded on prevention of public disorder while
the acts imputed to the petitioner ex (acie were· aimed at a particular
person and not .the public.generally. Lohia's(I.) cas~ and other rulings
were said to reinforce this stance. The law 1s plrun and the decided
cases are coilcordant. A criminal act hitting a private target such as
indecent assult of a~ .woman or slapping a neighbour or knocking
down a pedestrian wliile driving may not shake up public order. But
(1) ll966J 1 S.C.R. 7G9.
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GOLAM HUSSAIN v. COMMR. POLICE (Krishna lyer,1.)
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a drunk with a drawn knife chasing a woman in a public street and all
women running in panic, a Hindu or Muslim in a crowded place at a
time of communal tension throwing a bomb at a personal enemy of
the Other religion and the people all scared .fleeing the area, a striking
worker armed with a dagger stabbing a blackleg during a bitter strike
spreading terror-these are invasions of public order although the
motivation may be againsi a particular private individual. The nature
of the act the circum,tances of its commission the impact on people
around and such like factors constitute the pathology of public disorder. We cannot isolate the act from its public setting or analyse
its molecules a~ in a laboratory but take its total effect on the flow of
orderly life. It may be a question of the degree and quality of the
activity of the sensitivity of the situation and the psychic response
of the involved people. To dissect further is to defeat the purpose of
social defence which iS the paramount purpose of preventive detention.
Another argument, ratner flimsy, was made that a corrigendum
reading 'public order' in the place of 'police order' was not communicated to the detenu. It is not so and merits no con,ideration. One
or two other points, too trivial to be seriously noticed were also mentioned but we ignore them.
Basically we must realise the unpleasant truth that the new jurisdiction of preventive detention by executive fiat rounded on subjective
satisfaction and jejune judicial protection is an erosion of a great right.
We may repeat what this Court in a different context recently observed
in Mohd. Subrati v. State of West Benga/(I) :
"It must be remembered tha, the personal liberty of an
individual has been given an honoured place in the fundamental
rights which our Constitution has jealously protected against
illegal and arbitrary deprivation and that this Court has been
entrusted with a duty and invested with a power t1> enforee that
fundamental right."
The seriousness of the step must be appreciated by Government and continuous check-up on the need to prolong the prison
life of the citizen made. The final cure for prejudicial activities threatening the survival of the communi~y is not exe.cutive shut·up of all
suspects in prison for how long one is kept guessing. Such a strategy
may alienate and embitter men who should be weaned away and
won over. Jn the present case a septuagenarion
alle~edly sickly
is confined in jail for an unspecified period: It may well be that his
private enemy on whom he threw a bomb IS not there at all. It may
also be that the detenu has altogether changed his outlook as many
well-known terrorists have turned marvels of saintliness.
History
will, we hope, serve the Agministration a~ reminder of unwitting misu~;
\Vhile exercising near-absolute power.
We dismiss the petition.
P.B.R.
Petition dismissed.
(!) J1973] 3 s.c.c. 250; 256