# MOHD. SUBRATI ALIAS MOHD. KARIM v. STATE OF WEST BENGAL

- **Citation:** [1973] 2 S.C.R. 990
- **Court:** Supreme Court of India
- **Decided:** 1972-11-14
- **Case number:** Writ Petition No. 307 of 1972
- **Bench:** A. Alagiriswami, I. D. Dua, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-subrati-alias-mohd-karim-v-state-of-west-bengal-5935
- **Pages:** 8

## Headnote

Maintenance oj"/11te1nal Security Act (26 of 1971), s. 3 (I) and (2)
-Scope of.
Duty of Srate to place before Court all mal/ers relev11111 to the deten-
. tion and of officers swearing to affidarifs to be careful.
The petitioner committed thefts of electric copper wire and when
challenged by the inhabitants of the are» he and his associates hurled
bombs at them.
The thefts totally disrupted' the electric supply
for.
several hours in the areas concerned.
The petitioner was detained by·
an order of preventive detention under s. 3(1) and (2) of the Maintenance of Internal Security Act, 1971.
In a petition under Art. 32 he
contended that he ought to have. been proceeded against in a court o'f
law a.id that the investigating agency did not put him on a regulat trial
for want of evidence.
HELD: (I) (a)
1 The Act was necessitated because in view of the·
prevailing situation in the country and the developments ·across the
border the existing laws available to deal with the situatioo were found
to be inadcqul>te arid it was considered necessary for urgent and effec'tive
preventive action, in the interest of national security, to have powers of
preventive detention to deal effectively with threats to the defence and
the security of India.
Section 3 of the Act carries out the statutory pur_.
pose of prevcotivc detention and has nothing to do with trial and punishment Of persons for comn1ission of offences. If, therefore, for any reason,
it is not possible to successfully try and secure the conviction ""d imprisonment of the persons concerned for their past activities, \Vhich
amount to an offence, but which arc also relevant for the satisfaction
of the detaining authority for considering it necessary that a detention
order under s. 3 be mr..je for preventing such persons from acting in
a prejudicial manner as contemplated by the section. then the Act would
indisputably be attracted and a detention order can appropriately be
made. The detention order in 'Such a case cannot be challengeJ on the
ground that the detained person should have been tried for the offence
committed or that proceedings under Chap. Vlll ·er. P. C.
could have
"ecn initiated against him. The Act creates in the authorities concerned,
a new jurisdiction to make orders of preventive detention on their subjective satisfaction of grounds Of suspicion of commission in future of
acts prejudicial to the community. This jurisdiction is different from that
o'f Judicial trial in .courts and of judicial orders for prevention of offences.
Therefore, even an unsuccessful judicial trial -or proceeding would ro!
oocrate ·as a bar to the ·detention order. or rend.-r it mala fide. [993 B·H;
994 A-CJ
Sahih Si1111h Duf'm/ v. Union of India. [19661 1 S.C.R. 313, S. C. Bose
& anr. v. C. C. Bose [1972] 2 S.C.C. 607 and Borjahan Gorey v. State of
West Be1111al [ 1972] 2 S.C.C. 550 followed
(b) The right to personal liberty is protected by the Constitution. but
this liberty is not absolute and is not to be understood to amount to
license to indulge in activities which wrongfully and unjustly deprive the
community
or
society
of
essential
services
and
supplies.
The
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MOHD. SUBRATI V. WEST BENGAL (Dua, /,)
991
right of society as a whole is, from its very nature, of much greater im·
portance than that of an individual, and m case of conJ!ict between the
two, the individual's right is subjected by the Con•titution to reasonable
restriction to the larger interests of society. [996 D-FJ
(c) In the present case, the grounds of detention are clear, relevant
and germane to the object and purpose for which preventive detention is
authorised by the Act, and the detention order is not open to challenge.
(996 B·D]
(2) This Court normally accepts without 'reservation the sworn aft!·
davits of responsible officers on the assumption that the facts staled therein
are ~bsolutely true and Jhat there is no mis-statement or concealment of
relevant facts. It is therefore obligatory on

## Text

990
MOHD. SUBRATI ALIAS MOHD. KARIM
v.
STATE OF WEST BENGAL
November 14, 1972
[A. ALAGIRISWAMI, I. D. DUA AND C. A.
VAIDIALINGAM, JJ.]
Maintenance oj"/11te1nal Security Act (26 of 1971), s. 3 (I) and (2)
-Scope of.
Duty of Srate to place before Court all mal/ers relev11111 to the deten-
. tion and of officers swearing to affidarifs to be careful.
The petitioner committed thefts of electric copper wire and when
challenged by the inhabitants of the are» he and his associates hurled
bombs at them.
The thefts totally disrupted' the electric supply
for.
several hours in the areas concerned.
The petitioner was detained by·
an order of preventive detention under s. 3(1) and (2) of the Maintenance of Internal Security Act, 1971.
In a petition under Art. 32 he
contended that he ought to have. been proceeded against in a court o'f
law a.id that the investigating agency did not put him on a regulat trial
for want of evidence.
HELD: (I) (a)
1 The Act was necessitated because in view of the·
prevailing situation in the country and the developments ·across the
border the existing laws available to deal with the situatioo were found
to be inadcqul>te arid it was considered necessary for urgent and effec'tive
preventive action, in the interest of national security, to have powers of
preventive detention to deal effectively with threats to the defence and
the security of India.
Section 3 of the Act carries out the statutory pur_.
pose of prevcotivc detention and has nothing to do with trial and punishment Of persons for comn1ission of offences. If, therefore, for any reason,
it is not possible to successfully try and secure the conviction ""d imprisonment of the persons concerned for their past activities, \Vhich
amount to an offence, but which arc also relevant for the satisfaction
of the detaining authority for considering it necessary that a detention
order under s. 3 be mr..je for preventing such persons from acting in
a prejudicial manner as contemplated by the section. then the Act would
indisputably be attracted and a detention order can appropriately be
made. The detention order in 'Such a case cannot be challengeJ on the
ground that the detained person should have been tried for the offence
committed or that proceedings under Chap. Vlll ·er. P. C.
could have
"ecn initiated against him. The Act creates in the authorities concerned,
a new jurisdiction to make orders of preventive detention on their subjective satisfaction of grounds Of suspicion of commission in future of
acts prejudicial to the community. This jurisdiction is different from that
o'f Judicial trial in .courts and of judicial orders for prevention of offences.
Therefore, even an unsuccessful judicial trial -or proceeding would ro!
oocrate ·as a bar to the ·detention order. or rend.-r it mala fide. [993 B·H;
994 A-CJ
Sahih Si1111h Duf'm/ v. Union of India. [19661 1 S.C.R. 313, S. C. Bose
& anr. v. C. C. Bose [1972] 2 S.C.C. 607 and Borjahan Gorey v. State of
West Be1111al [ 1972] 2 S.C.C. 550 followed
(b) The right to personal liberty is protected by the Constitution. but
this liberty is not absolute and is not to be understood to amount to
license to indulge in activities which wrongfully and unjustly deprive the
community
or
society
of
essential
services
and
supplies.
The
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MOHD. SUBRATI V. WEST BENGAL (Dua, /,)
991
right of society as a whole is, from its very nature, of much greater im·
portance than that of an individual, and m case of conJ!ict between the
two, the individual's right is subjected by the Con•titution to reasonable
restriction to the larger interests of society. [996 D-FJ
(c) In the present case, the grounds of detention are clear, relevant
and germane to the object and purpose for which preventive detention is
authorised by the Act, and the detention order is not open to challenge.
(996 B·D]
(2) This Court normally accepts without 'reservation the sworn aft!·
davits of responsible officers on the assumption that the facts staled therein
are ~bsolutely true and Jhat there is no mis-statement or concealment of
relevant facts. It is therefore obligatory on the part of the State to place
before the Court all the relevant facts relating to the impugned detention
truly, clearly and with utmost ftloirness, and it is incumbent on the officer
concerned, swearing the counter affidavit, to take good care to satisfy
himself that what he states on oath is absolutely true according to the
record. [996 .F: 997 A-01
ORIGINAL JURISDICTION :
Writ Petition No. 307 of 1972.
Petition· under Article 32 of the Constitution of India for a
writ in the nature of habeas corpus.
Jagmohan Khanna for the petitioner.
G. S. Chatterjee for the respondent.
The Judgment of the Court was delivered by
DuA, J .-The petitioner in these proceedings for a wnt m
the nature of habeas corpus under Art. 32 of the Constitution is
one Mohd. Subrati alias Mohd. Karim detained in the Burdwan
Jail pursuant to the impugned order of detention dated February
9, 1972 made by the District Magistrate, Burdwan in exercise
of the powers conferred on him by sub-s. (!) reaci with sub-s. (2)
of s. 3 of the Maintenance of Iilternal Security Act No. 26 of
1971 (hereinafter called the Act). The ;aid District Magistrate,
as is clear from impugned order, was sati>fied that with a view
to preventing 'the petitioner from acting in any manner prejudicial
to the maintenance of supplies and services essential to
the
community it was necessary to make the order directing
that
he be detained. The ground of detention were duly served on
him at the time of his arrest on
Februa1 y 11, 1972.
Those
grounds are :-
"I. That on 6-1-72 at about 03.30 hrs. you along
with your associates including ( 1) Tcka Buhadur son
of Shri Harak Bir Bahadur of Hutton
Road,
P.S.
Asansol. Dist. Burd wan, (2) Shri Ganesh Das son of
S~ri Chote Das of Gour Monda! Road, P.S.
Asansol,
Dist. Bur~wan committed theft in respect of electric
copper wtre f about 1500 ft. in length) at
Hatgarui
near Sen-Rele1gh Water Pump, P.S.
Asansol, Dist.
Burdwan.
As a result of this theft, water supply as
992
SUPREME COURT REPORTS
(1973] 2 S.C.R.
well as electric supply in Sen-Releigh Housing Colony;
P.S. Asansol, Dist. Burdwan was totally disrupted for
about 8 hours to the sufferimt• of the people of the
locality.
2. That on 12-1-72 at about 04.00 hrs. you along
w_ith your associates including ( 1) Teka Bahadur son
of Shri Harak: Bir Bahadur of Hutton Road,
P .S.
Asansol Dist. Burdwan (2) Ganesh Das, son of Shri
Chote Das of Gour Monda! Road, P.S. Asansol, Dist.
Burdwan. committed theft in respect of electric copper
wire (about 3000 ft. in length) from the electric poles
at 'C' Block, Sen Releigh Housing Colony, P.S. Asansol
Dist. Burdwan.
When challenged by the inhabitants
of the area, you and your associates hurled bombs towards them.
By your act, electric supply was totally
disrupted in 'C' .Block area,
Sen
Releigh
Housing
Estate and its adjoining areas for mo1" than 12 hours
causing much inconvenience to the p~ople of the locality."
'The fact of making the order ·of detention was duly reported
to the State Government OD February 9, 1972, the date of the
order.
TI1e State Goveniment approved that order on February
21, 1972 and the necessary report submitted to the Central Govermnent the same day.
The petitioner, as stated by him in the
petition for habeas corpus, was produced before and heard in person, by the Advisory Board on April 10, 1972. The Board,
according to the respondent,· gave its decision the same day. The.
representation made by the petitioner was received by the State
Government on March 16, 1972 and considered bv the
said
Government on March 22, 1972.
The State Government confirmed the order of detention on May 5, 1972 and c01nmunicated
it~ order to the detenu the same day.
The only oubmission pressed by Shri Jagmohan, the learned
counsel appearing as amicus curiae in support of the writ petition, in assailing the order of detention is that, according to the
return itself, two cases for theft of copper wires under s.
379,
I.P.C. were registered against the petitioner and
others at the
Asansol Police Station (Case no. 16 ·dated 6th January, 1972
and case no. 20 dated 12th January, 1972), but as th: witnesses
examined under s. 161, Cr.P.C. were reluctant w depose against
petitioner and his associates for fear of danger to their lives, the
Investigating Officer submitted as "true, his final report suspecting
the petition~r and his ~ssociates. The order of detention was for
this reason de>cribed by Shri Khanna as ma/a fide and. therefore,
liabb to be quashed.
According to the learned counsel in such
cases criminal trial is the only course open to the State and no
order of detention is legally competent.
The counsel added that
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MOHD. SUBRATI v. WEST BENGAL (Dua, J.)
993
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if the criminal 'trial fails or the case is not launched because it is
liable to fail, the State has to remain content with the result. It
cannot deprive the suspected person of his liberty under the Act
We ar-! unable to accept this contention.
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The Act w~s brought on the statute book in 1971 in order .to
provide for detention in certain cases f<Jr the purpose of maintenance of internal security and matters connected therewith. Its
enactment was necessitated because in view of the prevailing
situation in the country and th.~ developments across the border
it was considered necessary for urgent and
effective pro!ventive
action in the interest of national security, to have powers of pre·
ventive detention 'to deal effectively with threats to the defence
and the security of India because the existing laws available to
deal with the situation were not found to be adequate.
The
•!mergent requirement for such a Jaw would be obvious from the
fact that before its enactment it had been considered necessary to
promulgate the Maintcnan•·e of Internal Se.:urity Ordinance, 1971
which was replaced by the present Act
Under s. 3 ( 1) of the
Act, the Central Government or the State Government may, if
satisfied with respect to any person, that with a view to preventing
him from acting in any manner prejudicial to, inter alia, the security of the State or the. maintenance of supplie5 and services essential to the community, it is necessary to do so, make an order
directing that such person be detained.
Sub-section (2) of this
section authorises District Magistrates and certain other officers,
if satisfied a5 above to exercise the power conferred by sub-s. (1).
h is quite clear that this section carries out the statutory purposeo
of preventive detention and it has nothing to do with trial and
punishment of persons for commission of offences.
Indeed, it is
precisely because the existing law providing, for the punishment
of persons accused of commission of offences and, for prevention
of offences, is not found adequate for dealing with the situation
for eff.xtively preventing, in the interest of naticnal security etc ..
the commission of prejudicial acts m futur,~. that the provisions
of this Act were enacted and are intended to
he utilised.
If,
therefore, for any reason it is not possible to successfully try and
secure the conviction and imprisonment of the persons concerned
for their past activities, which amount to an offence, but which
are also relevant for the satisfaction ot the detaining authority for
c:insidering it necessary that a detention order under s. 3 he made
for preventing such persons from actmg in a prejudicial manner
as contemplated by that s::ction, then, the Act would indisputably
be attracted and a detention order can appropriately be made.
The detention order in such a case cannot be challeng,ed on the
ground that the person ordered to be detained was liable to be
tried for the commission of the offence or offences founded on
his conduct. on the basis of which, the detention order has been
994
SUPREME COURT REPORTS ,
[1973] 2 S.C.R.
made or that proceedings under Chapter VIII, Cr.P.C. could be
initiated against him.
The object, scheme .and language of the
Act is clearly against the petitioner's submission. The Act creates
in the authorities concerned a new jurisdiction to make orders for
preventive detention on their subjective satisfaction of grounds of
suspicion of commission in future of acts prejudicial to the community in general.
This jurisdiction is different from that of
judicial trial in courts for offences and of judicial orders for pre-
\~ntion of offences. 'Even unsuccessful judicial trial or proceeding would, therefore, not operate as a bar to a detention order or
render it ma/a fide. The matter is also not res integra.
Indeed, while dealing with the Defence of India Rules which
also empowered the Government of India to make orders of preventive detention this Court in Sahib Singh Dugal v. Union
of'
India( 1) repelled a similar contention in the following words
"The next .contention on behalf of the petitioners is
that the order Is ma/a fide.
The reason for this contention is that it was originally intended to prosecute
the petitioners under s. 3 of ihe Official Secrets Act
and when the authorities were unable to get sufficient
evidence· to obtain a conviction they decided to drop
the criminal proceedings and to order the detention of
the petitioners.
This by itself is not sufficient to lead
to the inference that the action of the detaining authority was ma/a fide.
It may very well be that the executive authorities felt that it was not possible to obtain a
conviction for a particular offence under the
Official
Secrets Act, at the same time they might reasonably
come to the conclusion that the activities of the petitioners which had been watched for over two years
before the order of detention was passed were of such a
nature as to justify the order of detention. We cannot
infer merely from the fact tha! the authorities decided
to drop the case under the Official Secrets Act and
thereafter to order the detention of the petitioners under
the Rules that the order of detention was
ma/a fide.
As we have already said,
it may not be possible to
obtain a conviction for a particular offence; but the
authorities may still be justified in ordering detention of
a .person in view c' his past activities which will be of a
wider range than the mere proof of a particular offence
in a court of law.
We are not therefore prepared to
hold that the orders of detention in these cases were
ma/a fide".
(I} [1966] I S.C.R. -313.
·-·-'--·-·-·
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MOHD. SUBRATI v. WBST BBNGAL (Dua, J.)
995
A 1bia decision was followed by this Court in Mohd. Salim K~
v. C. C. Bose & anr.(1 ). A similar view was also taken by this
Court in Borjahan Gorey v. State of West Bengal(') where it was
observed:
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'The preventive detention provided by the Act is
appareMl.y designed to deal urgently and effectively
with the more serious situation, inter alia, afle<;ting the
security of India and the maintenance of public order
as coll'lemplated ~ section 3 of. the Act. The liability
of the detenu also to be tried for commission of
ltD
offence ...... do not in. any way as a inatter of 111w
affect or impinge upon the full operation of the A1;t.
The reason is obvious.
Judicial trial for punishing tile
accused for the commission of an offence. . . . . . is a.
jurisdiction distinct from that of detention under the
Act, which has in view, the object of preventing the
detenu from acting i:n any manner prejudicial inter alia
to the security of the State or maintenance of public
order.
The fields of these two jurisdictions are not.coextensive nor are they alternative.
The jurisdiction
under the Act may be invoked, when the available eYi·
dence does riot come up to the standard of judicial proof
but is otherwise cogent enough to give rise to suspic1oa
in the mind of the authority concerned that there j$ a
reasonable likelihood of repetition of past conduct
which would be prejudicial inter a/ia to the security of
the State or the maintenance of public order or even
when the witnesses may be frightened or scared of
cominl( to a court and deposinl( about past acts on
which the opinion of the authority concerned is based.
This jurisdiction is sometimes called the jurisdiction of
suspicion founded on past incidents and depending c.n
subjective satisfaction. . . . . • The grounds of detention
relate to the past acts on which the opinion as to the
likelihood of the repetition of such or similar acts is
based and those grounds are furnished to the detenu
to infori:n him as to how and why the subjective satisfaction has been arrived at so as to enable him to
represent against them.
The fact, therefore,
that a
prosecution under the Code could also
have been
launched is not a valid ground for saying that it pre\
eludes the authority from acting under the Act."
The l!;rievance that the petitioner ought to have been proceed·
ed agains~ in a court of law, and that the investigating agency did
not put him on a regular trial for want of evidence can thus be
(I) 119721 2 S.C.C. 001.
12-L521Sup.C.I.173
t(2) [1972] 2 s.c.c. sso.
996
SUPREME COURT REPORTS
[1973] 2 S.C.lt.
no bar to his detention if the detaining authority under the ~ct
is satisfied that it is necessary to make the order of preventive
detention on the grounds contemplated by the Act.
·
The ,grounds on the basis of which the petitioner has beet1
detained are clear, relevant and germane to the object and purpose for which preventive detention is authorised by the Act.
The pe•itioner is stated to have committed theft of electric copper
wires on January 6 and 12, 1972. When he was challenged by
the inhabitants of the area be and his associates hurled bombs towards them.
The theflt of electric wire totally disrupted electric
supplies for ;everal hours in the areas concerned.
This conduct
is very relevant for satisfying the authority concerned that it is
prejudicial :o lhe maintenance of supplies and services e&Sential
to the community and if such authority considers it necessary on
this ground to detain him with a view to p;eventing him from
repeating such acts, then, the order of detention would indubitably
and legitimat~ly fall within the purview of s. 3 of the Act.
The
detention or<Jer is not open to challenge in these proceedings on
the grounds averred in the writ petition and urged by the learned
co.unsel at the bar.
In this connection, S"ri Chatter.ii also drew
our attention to Arun Kumar v. State of West Bengal(') and
Sasti Chowdhary v. State oj West Bengal(').
No doubt, the right to personal liberty of an individual is
jealously protected by our Constit'.ltion but this liberty is not
absolute and is not to be understood to amount to licence to
indulge in activities which wrongfully and unjustly deprive the
community of the society of essential services and supplies.
The
right ()f the society as a whole is, from its very nature, of such
greater importance than that of an individual. In case of confiict between the two rights, the individual's right is su~eoted by
our Constitution to reasonable restrictions in the larger interests
of the society.
Before concluding, however, we consider il proper to refer to
one other !flatter which appears to be of importance. According
to rthe counter-affidavit the order of detention has been approved
by the State Govemcent under s. 3 (3) of the Act on February
18, 1972.
This is clearly inc;prrect.
We find from the original
order of approval from the record (which was produced by the
counsel for the State under our directions) that it was draft on
February 19, 1972 but actually signed by the Deputy Secretary on
behalf of the Government on February 21, 1972.
The ,)rder of
approval must, therefore. be considered to have been made only
<Jn the day when it was si~ed, i.e., February 21, 1972.
We are
unable to find any cogent reason for the sworn assertion
iu the
(l) A.LR. 1972 S.C. 1858.
W
A.T.R. 1972 S.C. 1668.
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counter-affidavit that this order had been approved on February
18, 1972. We feel that the counter-affidavit produced in this
Court in answer to the challenge to the preventive aetention of
the detenu should contain all the facts correctly and full disclosure must be made without any reservation.
It inust be
remembered that the personal liberty of an individual has been
B 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 to enforce that fundamental right. It
is, therefore, obligatory on the part of the State to place bt;fore
this Court all the relevant facts relating to the impugned deten- '
C
tion truly, clearly and with the utmost fairness.
This Court normally accepts without reservation the sworn affidavits by responsible officers on the assumption that the facts stated therein are
absolutely true and that there is no mis-statement or concealment
of relevant facts. It is, therefore, incumbent on the officer concerned swearing the counter-affidavit to take good care to satisfy
himself that what he states on oath is absolutely true according
D
to the record.
This petition fails and is dismissed.
V.P.S.
Petition dismissed.