# HARADHAN SAHA & ANOTHER v. THE STATE OF. WEST BENGAL & ORS

- **Citation:** [1975] 1 S.C.R. 778
- **Court:** Supreme Court of India
- **Decided:** 1974-08-21
- **Case number:** Writ Petitions Nos. 1999 & 1913 of 1973
- **Bench:** A. N. Ray, P. JAGANMoHAN REDDY, K. K. MArnEw, M. H. Beg, A. ALAGfRISWAMI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/haradhan-saha-another-v-the-state-of-west-bengal-ors-6249
- **Pages:** 12

## Headnote

Maintenance of Internal Security A.ct, 1971 (A.ct 26 of l911)-Con.s1iJu1io11al validity-Act whetMr violative of Artic:le 141 19, 21 a,.J 22-H«td, 1he
Act does not ·suOer from any constitutional infirn1lty.
A
n
c
The petitioncr!i were .detained under the Act· for,· acting in a manner prejudicial to the maintenance of supplies and !Crvices e~sential ·to the com·
munitY. In. the one case, the ground of· detention was that the petitioner in
cotl~ion with his father had hoarded· foodgrains,· that he :Jiad no licence ;,t!
required· by the anti-hoarding control Order and that he wits likely to withhold or impede supply of foodstuffs or rationed articles essential to the_ community. _ In the other case, the grounds were that the petitioner and his
lbsociates had smugg]ed. 115 bags of rice covered by coal by engaging lorry
D
~'ithout any valid permit or authority· and in violatlo:rl' of control order and
tried to frustiate the food and procurement policy .of the Govt. and thus
acted in a manrier prejudicial ·to the inaintenance of supplies and services
~ntial to the community. The petitioners challenged the-respective orders
of detention _as havin2 ·been made for a collateral purpose and contended that
the Act was violative of Articles 14. 19 •. 21 and 22 of the Constitution of
Jadia. Dismissing the Writ petitions.
HELO : ( 1) Article 14 is inapplicable becaUSe preventive detentioD. and
prosecution are not synonymous. The purposes are different. The authori·
ties are different. The nature of proceedings _is . different. In . a
prosecution an accused is sought to be punished for a past .let. In preventive detentio~ . the past act is . merely the material for inference about the future
conrse of probable conduct on too pan of the detenu. [787HJ
The principles wh~ can be broadly stat.ed are these. First. merely
because a detenu is liable to be tried in a criminal colUt for the ·commission
ot a criminal o.ffence or to be proceeded against for preventing him from
·committing offences dealt. with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Govt. from ~ak.ing actio!l for
hi~ deten-
- _. tion under the Act. Second, the fact that Police arrests a _person and later
on enlarges him on bail and. initiates steps to prosecute him under the Code
E
F
of Criminal· Procedure and even lodges a first information report. may be no
G
bar against the District Magistrate issuinit 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 Jil:ely
to be released for a ·fair tength of time. it may be possible to contend that
there ·could l:e Do satisfaction on the ·part of the detaining ·authority as to
the likelihood of such a person· indulging in activities which \vonld jeopar'.'
dise the security of the State or public order. Fourth, the mere circum- ·
stance that a detention order is pas~ed during the pendency of the pro5ecuH
rion ·wilt not violate the order. Fifth, the order of detention is a precau·
tionay measure. It is based on a reasonable prognosis of the future . behe-
\'K>ur of a person based on his past conduct in the light of the surrounding
circwn•tances. [788B-FJ
a. SA8A v. WEST BENGAL (Ray, C.J.)
779
A
Borjaium Gorey v. The State of West Bengal. AIR 1972 SC 2256 • .A.sh;m
Kumar Ray v.· State of West Bengal, AIR 1972 SC 2.561, Abdul. Ajit v. Tile
District Ma?.istra~e, B<,. ... Jwan &. Ors.· AIR 1973 SC 770 and Debu MahJo v.
Th~ Star .. ct 1Vt~·t Be t?"a!"AIR 1974 SC 816 relied on.
B
Biram Ci1and v._ State of l.litar l'radesli &·Ors, J\IR 1974 SC 1161 overruled.
(ii) The Constitution has conferred tights under Art. 19 and also adopted
preventive detention to prevent the greater evil of elements imperilling the
security. the safety of a State and the welfare of the nation: It is not pos·
tible to think that a· person . who is detained will yet be free to movo
or
a~semble or_ form associations

## Text

778
HARADHAN SAHA & ANOTHER
v.
THE STATE OF. WEST BENGAL & ORS.
August 21, 1974
[A. N. RAY, ci.,.P. JAGANMoHAN REDDY, K. K. MArnEw, M. H. BEG
AND A. ALAGfRISWAMI, JJ.]
Maintenance of Internal Security A.ct, 1971 (A.ct 26 of l911)-Con.s1iJu1io11al validity-Act whetMr violative of Artic:le 141 19, 21 a,.J 22-H«td, 1he
Act does not ·suOer from any constitutional infirn1lty.
A
n
c
The petitioncr!i were .detained under the Act· for,· acting in a manner prejudicial to the maintenance of supplies and !Crvices e~sential ·to the com·
munitY. In. the one case, the ground of· detention was that the petitioner in
cotl~ion with his father had hoarded· foodgrains,· that he :Jiad no licence ;,t!
required· by the anti-hoarding control Order and that he wits likely to withhold or impede supply of foodstuffs or rationed articles essential to the_ community. _ In the other case, the grounds were that the petitioner and his
lbsociates had smugg]ed. 115 bags of rice covered by coal by engaging lorry
D
~'ithout any valid permit or authority· and in violatlo:rl' of control order and
tried to frustiate the food and procurement policy .of the Govt. and thus
acted in a manrier prejudicial ·to the inaintenance of supplies and services
~ntial to the community. The petitioners challenged the-respective orders
of detention _as havin2 ·been made for a collateral purpose and contended that
the Act was violative of Articles 14. 19 •. 21 and 22 of the Constitution of
Jadia. Dismissing the Writ petitions.
HELO : ( 1) Article 14 is inapplicable becaUSe preventive detentioD. and
prosecution are not synonymous. The purposes are different. The authori·
ties are different. The nature of proceedings _is . different. In . a
prosecution an accused is sought to be punished for a past .let. In preventive detentio~ . the past act is . merely the material for inference about the future
conrse of probable conduct on too pan of the detenu. [787HJ
The principles wh~ can be broadly stat.ed are these. First. merely
because a detenu is liable to be tried in a criminal colUt for the ·commission
ot a criminal o.ffence or to be proceeded against for preventing him from
·committing offences dealt. with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Govt. from ~ak.ing actio!l for
hi~ deten-
- _. tion under the Act. Second, the fact that Police arrests a _person and later
on enlarges him on bail and. initiates steps to prosecute him under the Code
E
F
of Criminal· Procedure and even lodges a first information report. may be no
G
bar against the District Magistrate issuinit 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 Jil:ely
to be released for a ·fair tength of time. it may be possible to contend that
there ·could l:e Do satisfaction on the ·part of the detaining ·authority as to
the likelihood of such a person· indulging in activities which \vonld jeopar'.'
dise the security of the State or public order. Fourth, the mere circum- ·
stance that a detention order is pas~ed during the pendency of the pro5ecuH
rion ·wilt not violate the order. Fifth, the order of detention is a precau·
tionay measure. It is based on a reasonable prognosis of the future . behe-
\'K>ur of a person based on his past conduct in the light of the surrounding
circwn•tances. [788B-FJ
a. SA8A v. WEST BENGAL (Ray, C.J.)
779
A
Borjaium Gorey v. The State of West Bengal. AIR 1972 SC 2256 • .A.sh;m
Kumar Ray v.· State of West Bengal, AIR 1972 SC 2.561, Abdul. Ajit v. Tile
District Ma?.istra~e, B<,. ... Jwan &. Ors.· AIR 1973 SC 770 and Debu MahJo v.
Th~ Star .. ct 1Vt~·t Be t?"a!"AIR 1974 SC 816 relied on.
B
Biram Ci1and v._ State of l.litar l'radesli &·Ors, J\IR 1974 SC 1161 overruled.
(ii) The Constitution has conferred tights under Art. 19 and also adopted
preventive detention to prevent the greater evil of elements imperilling the
security. the safety of a State and the welfare of the nation: It is not pos·
tible to think that a· person . who is detained will yet be free to movo
or
a~semble or_ form associations or unions or have the right to reside -in any
part of India or have the freedom of sPeech or. expression. A law which
attracts Art. 19 therefore mll'it be such as is capable of being tested to be
C '.'. m••onable under clauses (2) to (5) of Art. 19. [784CE] ·
D
E
F
·,.
G
H
.
On the assumption th.at the Act· which is for preventive detention, m.ay
be tested with regard· to· its reasonableness with referenee to. Arl 19, Sec. 3
cf the Act is to be interpreted in the light of various e&jsting statutes· which
deal with various acts ·mentioned in Section 3. The section provide& for
.the .detention Of persons to prevent likely. acts O! c1jme or acts which fall
within its ambit. [785A-DJ
·:.A. K. Gopalan v. The State of Madras, 1950 SCR 88 and RustonJ Cavasjee
Cooper eic. v. Union of India & other (Bank No.tioMlization cast") ( 1970) 3
SCR $30 referred to •.
It is an established rule of this Court- tb<i._t a detenu has a right to be
apprised of all the materials· on which the order of detentiop is based or approved. The only exception is as provided in,cJauses (6) arld (8) of Art. 22
where it · is not necesSary to disclose facts which may be a:ainst the public
intereot to disclose. [7850-E]
Procedural reasonableness flows from Art. 19.
Princjple~ of natural justiee
are an element in considering tW reasonableness of a restriction where Art. 19
is applicabie. There is an obligation on the. State and the Advisory B<?<trd. tQ
consider the representation of a detenu. There should be a real and proper
~onsideration. The dutv to consider the representation does not mean a per·
son.al hearing or the disclosure of reasons. There cannot be any abstract standard or general pattern of procedural· reasonableness. The nature.of the right
infringed. the u_nderlyina: purpose of the restrictions im-posed~ the extent and
urgency of ·the evil sought to be remedied thereby the disproportion of the
imposition. the prevailing cQnditions,. at the time; all provide the basis foi
considerin5t the reasonableness of a particular provision .. -Fainless denotes abs1.eDtion from abuse of discretion. Even if Art. 19 be· examined in regard to
·_preventive detention it does not increase the content of reasonableness required
_to be obsel'Ved in respect_ of ord~rs of preventive detention. _[786E-H] ·
(Hi) 'A.rt. 22 (S) speak5: of liberty and making a representation. The combined =ult of clause (4), (5) .& (6) of Art. 22 is that a procedure wl)ich
permits representation will ·give. all 'the facts before the Board. Art. 22(5)
shows that the law as to detentiOn is necessary. The· requirements of that Jaw
are to be found in Art. ·22 which gives the· mandate as to ·what will happen in
s8Cb circumstances.. The Article laiys down. substantive limitation~ as '\\'ell as
procedural safeguards. The principles of natural justice in so far as they are
compatible ·with detention laws· find place in Art. 22 itself and also· in the
Act. , [78SH-786B; 7870.EJ
. .
·
·
,
Section 8 of the Act which casts an obligation on the State to consider the
representation affords the detenu all the rights which aro guaranteed by Art
•
780
SUPREME COURT REPORTS
[1975] 1 s.c.R.
22(.5). The section is in complete conformity with Art. 22(Si' bcca11se it follows thr; provisions Of the Constitution. The Govt. considers the representation- to ascertain csscntiaUy whether the order is in conformity with the power
under the Jaw.
The Board. on the other hand. considers whether in the light
of the representation there iS sufficie~t cause for detention. [785G; 786H-787B]
Sec. 14 of the Act clothes the authority with the power of reYoking:_· or
rnodifyin£ the detention order at any time. Such a power which is for the
benefit of the detenu carrifs with it the duty t6 exercise that power whenever
and as soon as changed or new factors call for the exercise of that power. This
shows th••t the authorities can consider new facts
or changed circumstances.
17S5C-!J]
1-'agu Shaw v. Stale of J-Vest Bengal AlR 1974 S.C. 613 referred to.
For the foregoing: reasons, the Act does not suffer from any constitutional
infi:-mity.
[788F]
ORIGINAL JURISDICTION: Writ Petitions Nos. 1999 & 1913 of
1973.
Petitions under Article 32 of the Constitution of India ..
R. K. Garg, S. C. Agarwala, S. S. Bhatnagar and V. J. Fra11cis,
for the Petitioners (in both the Petitions).
P, K. Chatterjee, and G. S. Chaterjee, for the Respondents.
L. M. Singhvi and S. M. Jain for the Applicant/Intervener (The
State of Rajasthan)
L. N. Sinha, Solicitor Gen. of India, P. P. Rao and R. N. Sachthey;
A
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for. the Attorney General for India.
E
The Judgment of the Court was delivered by
RAY, C.J. The constitutional validity of the Maintenance of
Internal Security Act, 1971 being Act No. 26 of 1971 is challenged
in these petitions.
First, it is said that the law of preventive detention is unreason-
·. F
able, and, therefore, it violates Article 19. Second, it is said that tha
Act vioMes Article · 21 because the guarantee of a right to be heard
is infringed. Third, it is said that the Act does not lay down the
just procedure for giving effect to Article 22(5). Fourth, it is said
c that the Act violates Article 14 because it permits discrimination:
The Act confers power on the Central Government or the Stato
G
Government to make orders directing detention of persons. Section
3 of the Act provides that when the Central Government or the State
. Government is satisfied with respect to any person that with a view
to preventing him from acting in any manner prejudicial to (i) the ·
defence of India, the relations of India with foreign powers, or the
security of India, or (ii) the security of the State or the maintenance
11
of public order, or C.ii) the maintenance of supplies and
services
essential to the community, District Magistrates, Additional District
Magistrates or Commissioners of Police can pass orders of detention.
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H. SAHA V. WEST BENGAL (Ray, CJ.)
781 ---
The Act provides in sub-sections (3) 'alld ( 4) of section 3 that
when any order is m•do for detention the officer shall forthwith report
the fact to the Sta>~ Gc-;·errunent with the grounds on which th<> order
has been mack er.;· s:><:h c;her particulars as in his opinfon hav<> a
bearing on th;! ;:,at~1. . Further no order shall -remain in force for
more than twelve days Utter the making· thereof unless in the meantime it has been approved by the State Government. The proviso to
sub-section ( 3) states that where ·under section 8 the groundS · of
detention are communicated by the authority making the order after
live days but not later than fifteen days from the date of detention,
this sub-section shall apply subject to the modifiC'ation that for 'the
words "twelve days", the words "twenty-two days" shall . be
sub-
. stituted. · When ally order is made· or approved by the State Government, the State Government shall, within seven days, report the fact
to the Central Government together with the grounds on which the
order has been inade _and such other particulars oas in the opinion
of the State Gcivemment have a bearing.on the necessity for the order.
Section 7 ·of the Act states that if the Central Government or the
State Government or an officer specified in sub-section (2) of section
3 of_ the Act has reason to believe that a pets on ·in respect of whom
a detention order Iras been ·made has absconded or is concealing himself, a report in writing is to be made to the Presidency Magistrate or
a Magistrate of the first class. Thereafter the provisions of sections
87, 88 and 89 of the Code of Criminal Procedure 1898 (DDW the
corresponding sections. in the 1973 Act) shall apply in respect of.the
said person and his property as if the order directing that he be
detained were a warrant issued by the Magistrate. An order can also
be passed directing such person to appear and if he fails to comply
with the directions he shall unless he proves that it was not possible
for him to comply therewith and that he had, within the period
specified in the order, informed the officer ·of the reason
which
rendered compliance therewith impossible and of his whereabouts, be
punishable with imprisol)ment for a term ·which may extend to one
year or with fine or with both.
'
Section 8 provides that when a person is detained the authority
making theorder shall, as soon as may be,- but ordinarily not later
than five days and in exceptional circumstances not later than fifteen
days; from the .d•ate of detention, communicate to ~im the ground ~:m
which the order has -been made and shall affcrd him the opportunity
·of. making a representation against the order to
the
appropriate
Government.
The G~vernment constitutes one or more Advisory Boards. The
Board shall consist of ;hree persons who are, or have been, or are
qU"alified. to be appointed as, Judges of a High Court. The appropriate·
Government shail appoint one of the members of the A~visory _Board
who is, or has been, a Judge of the High Court t_o be its Chair'!'"!1·
A detention order is to be placed ibefore the Advisory Board within
30 days fiom the date of detention under the order. The grounds'
782
SUPREME COURT REPORTS
[1975] 1 s.c.R ..
of ~etention, the representation made by the person concerned and
A • •
· the report· of the officer making tho order shall be placed before the
Advisory Board. These are the provisions of section 10 of the Act .
. The Advisory Bc•ard under section 11 of the Act shall, after considering the materials placed before jt and, after calling for
such ·
further information as it· may deem necessary from the appropriat~
Government or from any person called for the purpose through. the
B
appropriate Government or fmm the person concerned and if, in any
particular case, it considers it essential so to do or if the person concerned desi[es to be heard, after bearing him in person, submit its
. report to the appropriate Government within 10 weeks from the date
of detention. The report of the Advisory &ard shall specify in a
separate part therecil' the opinion orthe Advisory Board as to whether
or not there is sufficient cause for the detention of the person concernC
ed. If here is a difference of opinion of the Advisory Board, the
opinion of the majority of such members shall be Jeemed to be the
opinion of the Board. A person against whom detention order has
been made is not entitled to appear by a legal practitioner before
the Advisory Board.
· Under section 12 of the Act where the Advisory Board has reD
ported that there is sufficient cause for the detention of a person, th<:>
appropriate Government may confirm . the detention order 'lllld continue the detention of lbe person concerned. It the Advisory Board
. reports that there is no sufficient cause for detention the appropriate
Government shall· revoke the detention order. ·
Section 14 provides that without prejudice to the. provisions of
E
section 21 of the General Clauses Act, 1897 a detention order may,
at any time, be revoked by the appropriate Government.
Section 15 provides that the appropriate Government mav. at anv
time, direct the release of any person detained without conditions or.
upon such conditions specified in the direction.
The Government
. may lllso cancel his release.
.F
In the background o! these provisions of the Act the petitioners
contend as follows : The Act does not provide for an objective determination of the· facts which are the foundation of a · decision for
detention. The opportunity to make a representation cannot be
reasonable if the order does not disclose the material on the basis
of which the demining authority arrives at a conclusion that grounds
G
for detention exist.· The representation cannot be reasonable if the
detenu has no opportilnity to test the truth of. the materials relied on
for detention. The Act does not define or lay down the standards for
objective assessment of the grounds for detention.
The Act does
not oblige the Government to consider ·the
representation
against
detention and decide every detention on facts and on law against
grounds _communicated to the deteitu.
·
H
In short, it is sald that the order of detention should set out all
the materials on the basis of which the appropriate Government comes
,..
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H. SAHA V. WEST BENGAL (Ray, C.J.)
783
to a conclusion that it is necessary to delllin a· person. Mere recital
in the order !ha( with a view to preventing a person from acting in
any ·manner. prejudical to the defence of Indra, the relations of India
with foreign powers, or the secur)ty of India, or the security of the
State or. the maintenence of public order, or the maintenance of supplies 'and services essential to the community does not enable the person detained . to attack the grounds for detention and to prove by
material in rebuta! his innocence by consideration of the representation.
The petitioners contend that the Act permits detention for two
years and even until the expiry of the period of proclamation of emergency and therefore it is ail unreasonable reitriction in violation of
Article 19 without 11 six monthly review with a judical approach. With ·
regard to the report of the Advisory Board ir is said that the reasons
for rejecting representation must be available to the person detained
· This is said to be necessary to enable the person detained to come up
before the Court for judicial review and in aid of his right to liberty.
The petitioners, therefore, contend that the law of preventive
detention is unreasonable, in violation of Article 19 inasmuch ·as the
order of detention can be passed on acts sought to be prevented
which acts are not defined. I( .is said that the power is so unguided
that acts forbidden and acts not forbidden by law are treated ·alike
to be the foundation for detention.
The petitioners contend that Article 21 is violate.ct. because a
detenu is not given the right to be heard on all facts and circumstances.
'The petitioners submit that whether deprivation of liberty is punitive
or preventive, the right to be heard is guaranteed by Article 21.
The. petitioners contend that Article 22 is violated br the
Act
because it does not provide for impartial and judicial consideration o1
the representation by the Government. The Act merely reproduces
the' language of Article 22 which cieates a.fetter on the power of
t~ legislature.
This Act does not provide any machinery and just
prooedure for giving effect to Article 22(5). The acts sought to be
prevented and which are ·mentioned as grounds for detention are not
defined.
Therefore pow~r is unguided and un·bridled.· The Act JS so
framed by reproducing Article 22(5) that nothing is shown to spell
out the requirements of procedure available in a reasonabl~ m:rnnor
to ensure fair play and justic,, against grounds communicated and not
withheld under Article 22 ( 6) ..
Finally, the petitioners contended that section 3 of the Act violated Article 14 because it permits the same offence to be a ground far
detention in different and discriminatory ways.
The petitioners sub.- .
mit that A may be prosecuted but not detained prevenfr>elv or B may
not be prosecuted but q:ily detained preventively or C may be prosecuted and also detained preventively. ·
.
The essential concept of preventive detention is that the detention
of a person is not to punish him for something he has done but to
784
SUPREME COURT REPORTS
[ 197 5] I S.C.R.
prevent him from doing it. The basis of detention is the satisfaction
of the executive of a reasonable probability of the likelihood of the
detenu acting in a manner similar to his past acts and· preventing
him by detention from doing the same. A criminal conviction on
the ·other hand is for an act already done which can only be possible
by a trial and legal evidence. There is no parallel between prosecu· .
tion in a Court of law and a detention order under the Act. One is
a punitive action and the other is a preventive act. In OJll' case a
person is punished to prove his guilt and the standard is proof beyonll
reasonable doubt whereas in preventive detention a man is prevented
from doing something which it is necessary for reasons mentioned in
section 3 of the Act to prevent. ·
Constitution has conferred rights under Article 19 and also adopt·
ed preventive detention ·10 prevent the greater evil of elements imperil·
ling the security, the safety of a State and the welfare of the Nation.
It is not possible to think that a person who is detained will yet be
free to move or assemble or.'Jorrn association or unians' or have the
right to reside in any part of India or have the freedom of speech or
expression. · Suppose a person is convicted of an offence of cheating
and prosecuted after trial, it is not open to · say · that the imprison,·
ment should be tested with reference to Article 19 for its reasonable·
ness. k !aw which attracts Article 19 therefore· must be such as is
capable of being tested to be reasonable under clauses (2) to (5) of
Article 19.
This Court in A. K. Gopala11 · v.
The State of Madras [1950]
S.C.R. 88 .held that Article 22 is a complete code and Article 19
is not invoked in those cases.. It is now said that the
view in
Gopalan's case (supra) no longer holds the field after the decision
in the Bank Nationalisation case (1970] 3 S.C.R. 530. In the
Bank Nationalisation case (supra)
this Court· held
that Article
31 (2) is not a complete protection for acquisition of property by the
two tests of .authority of law and compensation.
This Court said
that the direct impact of such an act of acquisition might invade
rights under Article 19, and, therefore, the acquisition could be
t<;sted as to whether it was· a reasonable restriction on the rights
guaranteed under Article 19. Article 19(1)(£) deals with the right
- - to acquire. hold and dispose of property.
It is apparent .that after
a person's .property has been acquired by the State he cannot acquire,
hold or dispose of the same property. In the Bank Nationalisation
case (supra) it is said that the acquisition which left. the Banks free
to do business other than banking. was rendered unreasonable by
reason of· the Banks being deprived of the wherewithal ·to carry on
the business.
The right guaranteed under Article 19(1 )(g) to carry
on any occupation, trade or business were therefore held to be directly
invaded bv the nationalisation of Banks. It is in this context that
the Bank Nationalisation case (supra) held that in spite of Artide
. 3t(2) the acquisition of pro~rty di1ectly impinged on
the
right
of the. Banks to carry on busmess other than Banking guaranteed
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Sl{AMSHBR SINOR v. ?UNJAB (Rely, C.J.)
785
under Article 19(1)(a;) and Articlo 31(2) was
not a protection
against infrini:ement of that prantoed right.
Wo may procood on tho assumption that the Act which ill for
preventive detention may be tested with regard to its reasonablenees
with reference to Article 19. ScctioJl 3 of the Act is to be interpreted
in tho light of various existina; Statutes which deal with tho various
actll mentioned in section 3.
Acts i;ought to be prevented are tound
in various lea;islations like tho Essential Commodities Act, the Bsicn· \
tial Services Act. It iB not necessary that. tho person to be detained
•hould havo actually committed a crime or a f?rbidden act. In some
cascs tho person who has not already committed a crimo is likely to
commit an act to prevent which section 3 provides for detention of
•uch a person.
Somo times it may be possible that an act which is
not forbidden by law may fall within the ambit of section 3.
Such
cl!Ses may be dealing with relations of India with foreign powers or
maintenance of public .order.
Tho Preventive Detention Act of 1950 was considered by this
Court and it is an established rule of this Court that a detenu has
a right to be apprised of all tho materials on which the order of
detention is based or approved. The only exception is as provided
in clauses (6) and (8) of Article 22 whero it is not necessary to
discloso facts which may be considered to be against the public intecest
to disclose.
-
The representation of a detenu is to be considered. There iB an
obligation on tho State to consider tho representation.
The Advisory
Board has adequate power to examine the entire
materials.
The
Board can also call for more materials. The Board may call the
dotenu at his request.
The constitution of tho Board shows that it
i• to consist of Judges or persons qualified to be Judges of the Hi&:h
Court.
The constitution of tho Board observes tho fundamental of
fair play and principles of natural justice. It is not the requirement
of principles of natural justice that there must ho an oral hearin&.
· Section 8 of tho Act which casts an obligation on •be State to consider
the representation alfords the detonu all tbe rights wbicb are guaran•
teed by Article 22 ( 5) . The <rovernment considers tho representa•
lion to ascortain essentially whether the order is in conformity with
the power under the law.
The Board, on the other hand, considered
whether in the light of the representation: there is sufficient cause for
detention.
The representation is to be considered by the
Advisory Boarcl
by following the substance of natural justice as far as it is consistenf
witb the nature or the impugned Act. the nature or the relative iurisdiction of tho Oover11D1ent and of the Advisory Board.
Procedural
roasonablenoss for natural iustico fl.ows from Article 19.
Article 22 ( 5)
speaks of liberty and m.aldn~ of representation.
The combined remit
of clauses (4), (5) and (6) of Article 22 is that a procedure whiCh
4-Lt92Sup.CI 75
.
786
SUPREME COURT REPORTS
[J 975] J S.C.R.
permits representation will give all. the facts before the Board.
Article 22(5) shows that law as to detention is necessary.
The requirements of that law are to be found in Article 22.
Article 22 gives the
mandate as to what will happen in such circumstances.
A
The opinion of the Board as well as the order of the Government
rejecting the representation of the detenu must be after proper consiB
deration.
There need not be a speakini order. There is also
no
failure of justice by the order not being a speaking order.
All that
is necessary is that there should be a real l\fld proper consideration by
the Government and the Advisory Board.
Section 14 of the Act clothes the authority with the power
of
revoking or modifying the; detention order at any time.
Such a power c
which is for the benefit of the detenu carri_es with it the
~uty to
exercise that power whenever and as soon as changed or new factors
call for the exercise of that power.
This shows that the authorities
can consider new factors or changed circumstances.
This Court has
already held in Fagu Shaw etc. v. State of West Bengal
A.I.R.
1974 S.C. 613 that when Parliament prescribed two years or until the
expiry of the Defence of India Act,,whichever is later, it satisfied the
D
requirements of Article 22(7) (b) of fixing the maximum period.
The further requirement of- a six monthly review a,s contended for by
the petitioners suggests a new provision. That does not go to reasonableness but to policy of legislature and due process of law.
Section 8 of the Act follows the provisions
of Article 22 (5)
of the Constitution. Article 22 ( 5) enjoins upon the detaining authoE
rity obligation to afford the detenu earliest opportunity of making a
representation against the order.
An opportunity of making a representation cannot be equated with an opportunity of oral hearing or
hearing before a Court and the procedure of judicial trial.
As long
as there is an 91lportunity to make a representation against the order
of detention and as long as a representation is to be considered by
the Advisory Board there is oo unreasonableness in regard to the
F
procedtire.
The duty to consider the representation does not mean
a personal hearing or the disclosure of reasons.
Procedural reasonableness which is invoked by the petitioners cannot have any abstract
standard or general pattern of reasonableness.
The nature of the
right infringed, the underlying purpose of the restrictions imposed,
the extent and urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions at the time,
G
all provide the :basis for considering the reasonableness of a particu-
:l
Jar provision. The procedure embodied in the Act has to be judged
in the context of the urgency and the magnitude of the problem, the
underlying purpose of the restrictions and the prevailing conditions.
Principles of natural justice
are an element in considering the
reasonableness of a restriction where Article 19 is applicable. At the
stage of consideration of representation by the
State Government,
the obligation of the State Government is such as Article 22(5) implies.
S:ection 8 of the Act is in complete conformity with Article
H
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H. SAHA v. WEST BENGAL (Ray, CJ.)
78 7
22(5) because this section follows the provisions of the constitution.
If the representation of the detenu is received before the matter is
referred to the Advisory Board, the detaining authority considers the
representation, If a representation is made after the matter has been
referred to the Advisory Board, the detaining authority will consider
it before it will send representation to the Advisory Board,
Elaborate rules of natural justice are excluded either expressly
or by necessary implication where procedural provisions are made in
the statute o_r where disclosure of relevant information to an interested
party would be contrary to the public interest. If a statutory provision excludes the application of any or all the principles of natural
justice then the Court does not completely ignore the mandate of
the legislature.
The Court
notices
the
distinction
between
the duty to act fairly and a duty to act judicially in accor- ·
dance with natural justice.
The detaining authority
is under
a duty to give fair consideration to the representation made by the
detenu but it is not under a duty to disclose to the detcnu any
evidence or information. The duty to act fairly is discharged even it
!!\ere is not an oral hearing. Fairness denotes abstention from abuse
of discretion.
Article 22 which provides for preventive detention lays .down substantive limitations as well as procedural safeguards. The principles
of natural justice in so far as they are compatible with detention laws
find place in Article 22 itself and also in the Act. Even if Article
19 be examined in regard to preventive detention it does not increase
the content of reasonableness required to be observed in respect of
orders of preventive detention.
The procedure in the Act provides
for fair consideration to the representation. Whether in a particular
case, a detenu has not been afforded an opportunity of making a representation or whether the detaining authority is abusing the powers
of detention can be brought before the Court of Law.
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
lo 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 prc~e
cution 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.
788
SUPREME COURT REPORTS
[1975) 1 S.C.R.
The recent decisions of this Court on this subject are many, The
A
decisions in Borjahan Gorey v. The State of West Bengal reported
in A.LR. 1972 S.(;. 2256, Ashim Kumar Ray v. State of West Bengal reported in A.LR. 1972 S.C. 2561, Abdul Aziz v. The Distt.
>4
Magistrate, Burdwan & Ors. reported in A.I.R.
1973 S.C.
770
and De bu Mahto v. The State of West Bengal reported in A.LR.
1974 SC. 816 correctly lay down the principles to be followed as to
whether a detention order is valid or not. The decision in Biram Chand
B
r
v. State of Uttar Pradesh & Ors. reported in A.LR. 1974 S.C. 1161
wh1ca is a Division Bench decision of two learned Judges is contrary
to the other Bench decisions consisting in each case of three learned
Judges. 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 with in Chapter VIII of the
C
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
iriitiates 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
D
time when an order of detention is passed against him and is not likely
to be releas~d 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 detenE
.,,
tion 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.
For the foregoing reasons, we are of opinion that the Act does not
suffer from any constitutional infirmity
In the case of Madanlal Agarwala it is submitted that the detention
F
order was for a collateral purpose because he was released on 26 March
1973 & 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 quintal 96 kg. of suji and further that he had no
licence as required by section 4 of the W~t Bengal Essential Foodstuffs Anti-Hoarding Order, 1966.
The detaining authority said in
the ground: "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 articles 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.
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H. SAHA v. WEST BENGAL (Ray, C.J.)
789
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 Sal!a with his
associates was smuggling 115 bags of rice weighing 93 quintals 80 kgs.
to Calcutta covered by coal by engaging Jorry without any valid permit
or authority. Haradhan Saha violated the provisions of West Bengal
Rice and Paddy (Restriction on Movement !iy 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 ~upplies 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.
The petitions are therefore dismissed.
S.B.W.
Petitions dismissed,
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