# NISIIl KANTA MONDAL v. STATE OF WEST BENGAL

- **Citation:** [1973] 1 S.C.R. 224
- **Court:** Supreme Court of India
- **Decided:** 1972-04-18
- **Case number:** Writ Petition No. 7 of 1972
- **Bench:** J. M. Shelat, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nisiil-kanta-mondal-v-state-of-west-bengal-5781
- **Pages:** 7

## Headnote

West Bengal (Prevention of Violent Activities) Act, 1970 (Presldenfs
Act 19 of 1910)-Section s 3(2) (d), 10-"Actlng in a "!"nn.~ prejudicial to the maintenance of public order"-If s. ·10 makes it obl~atory to
specify the dale in the order.
'Constitution o/ India--Article 356(1)-Law made under if co-terminous with the duration of the proclamation.
The petitioner was detained under s. 3 of the West Bengal (Prevention
of Violent Activities) Act, 1970 (President's Act 19 of 1970} as he was
acting in a manner prejudicial to the maintenance of public order. The
particulars supplied to' the petitioner showed that he and his associates
hurled bombs as a result of which panic was created in the local:ty ancl
that high explosive bombs were recovered from the possession of the petitioner and his associates. In the petition for the issue of a writ of habe01J
corpus it was contended on behalf of the petitioner that (i) on the revocation of the Proclamation under article 356 of tho Constitution, President's Act No. 19' of 1970 ceased to have effect and. as such, the petitioner could not be kept in detention in pursuance of the order made underthe Act: (ii) the impugned detention order was not in conformity with
section 10 of tile A.ct. as it did not specify the date of detc ition and (iii)
the groun<ls of detention were not germane 1".l. the objects fo.- which a person
can be ordered to be detained under the Act.
Dismissing the petition,
HELD : (i) The period for which a law made under article 356 (I)
remains in force is not co-terminous with the duration of the proclamation. In view of the provisions of clause (2) article 357, President's Act
19 of 1970 shall remain in fore\> in spite of the revacation of the proclamation and would cease to have effect only on the expiry of one year after
the proclamation has ceased to operate unless the provisions of the Act
are sooner repealed or reenacted by Act of the apprupriate State Legislature.
I227El
(ii) There is nothing in section 10 which makes it obiigatory on the
part of the detaining authority to specify the date of the commencement
of the detention : The words "from the date of detention under the
order" have reference to the date of the commencement of the deten-
.tion in pursWUlce of the detention order. [228E-Fl
(iii) According to cl. (d) of sub-section (2) of section 3 the expression uacting in !lny manner prejudicial to the
maintenance
of public
order" would include commission of an offence under the Arms Act, 1959,
or the Explosive Substances Act, 1908. The particulars supplied to the
petitio1'er clearly bring the case within the ambit of clause (d) of subsection (2) of section 3 of the Act. [229Hl
In order to detain a person with a view to preventing him from acting
in anv manner prejudicial to the security of the state or the maintenance
of public order, as contemplated by s. 3(2) (d) of the Act, it is sufficient·
A
B
c
.E
(I
G
A
B
c
N. K. MONDAL v. WEST BENGAL (Khanna, J.)
22S
that the detaining authority considers it necessary to detain him in order
to prevent him from doing any of the acts mentiorted in clause (d). If
the past conduct and antecedents of the person concerned reveal a tendency to do the acts· referred to in clause (d), the order of detention
would be upheld, even though because of some superyening cause like
prompt action by the police, the public order is nQf actually disturbed.
[230E-Gl
ORIGINAL JURISDICTION : Writ Petition No. 7 of 1972.
Under Article. 32 of the Constitution of India for a writ in the
nature of habeas corpus.
H. K. Puri, for the petitioner.
D. N. Mukherjee and G. S. Chatterjee, for the respondent.

## Text

\
224
NISIIl KANTA MONDAL
v.
STATE OF WEST BENGAL
April 18, 1972
[J. M. SHELAT AND H. R. KHANNA, JJ.]
West Bengal (Prevention of Violent Activities) Act, 1970 (Presldenfs
Act 19 of 1910)-Section s 3(2) (d), 10-"Actlng in a "!"nn.~ prejudicial to the maintenance of public order"-If s. ·10 makes it obl~atory to
specify the dale in the order.
'Constitution o/ India--Article 356(1)-Law made under if co-terminous with the duration of the proclamation.
The petitioner was detained under s. 3 of the West Bengal (Prevention
of Violent Activities) Act, 1970 (President's Act 19 of 1970} as he was
acting in a manner prejudicial to the maintenance of public order. The
particulars supplied to' the petitioner showed that he and his associates
hurled bombs as a result of which panic was created in the local:ty ancl
that high explosive bombs were recovered from the possession of the petitioner and his associates. In the petition for the issue of a writ of habe01J
corpus it was contended on behalf of the petitioner that (i) on the revocation of the Proclamation under article 356 of tho Constitution, President's Act No. 19' of 1970 ceased to have effect and. as such, the petitioner could not be kept in detention in pursuance of the order made underthe Act: (ii) the impugned detention order was not in conformity with
section 10 of tile A.ct. as it did not specify the date of detc ition and (iii)
the groun<ls of detention were not germane 1".l. the objects fo.- which a person
can be ordered to be detained under the Act.
Dismissing the petition,
HELD : (i) The period for which a law made under article 356 (I)
remains in force is not co-terminous with the duration of the proclamation. In view of the provisions of clause (2) article 357, President's Act
19 of 1970 shall remain in fore\> in spite of the revacation of the proclamation and would cease to have effect only on the expiry of one year after
the proclamation has ceased to operate unless the provisions of the Act
are sooner repealed or reenacted by Act of the apprupriate State Legislature.
I227El
(ii) There is nothing in section 10 which makes it obiigatory on the
part of the detaining authority to specify the date of the commencement
of the detention : The words "from the date of detention under the
order" have reference to the date of the commencement of the deten-
.tion in pursWUlce of the detention order. [228E-Fl
(iii) According to cl. (d) of sub-section (2) of section 3 the expression uacting in !lny manner prejudicial to the
maintenance
of public
order" would include commission of an offence under the Arms Act, 1959,
or the Explosive Substances Act, 1908. The particulars supplied to the
petitio1'er clearly bring the case within the ambit of clause (d) of subsection (2) of section 3 of the Act. [229Hl
In order to detain a person with a view to preventing him from acting
in anv manner prejudicial to the security of the state or the maintenance
of public order, as contemplated by s. 3(2) (d) of the Act, it is sufficient·
A
B
c
.E
(I
G
A
B
c
N. K. MONDAL v. WEST BENGAL (Khanna, J.)
22S
that the detaining authority considers it necessary to detain him in order
to prevent him from doing any of the acts mentiorted in clause (d). If
the past conduct and antecedents of the person concerned reveal a tendency to do the acts· referred to in clause (d), the order of detention
would be upheld, even though because of some superyening cause like
prompt action by the police, the public order is nQf actually disturbed.
[230E-Gl
ORIGINAL JURISDICTION : Writ Petition No. 7 of 1972.
Under Article. 32 of the Constitution of India for a writ in the
nature of habeas corpus.
H. K. Puri, for the petitioner.
D. N. Mukherjee and G. S. Chatterjee, for the respondent.
The Judgment of the Court was delivered by
Khanna, J.-This is a pe\ition through jail for the issuance of
a writ of habeas corpus by Nishi Kanta Mondal who has
been
ordered by the District Magistrate, 24-Parganas to be detained
under section 3 of the West Bengal (Prevention of Violent ActiD
vities) Act, 1970 (President's Act No. 19 of 1970), hereinafter
referred to as the Act. The order of detention reads as under :
E
"GOVERNMENT OF WEST BENGAL
OFFICE OF TIIE.DISTRICT MAGISTRATE
24-PARGANAS
ORDER
No. 352/71
Datetl, 'the 6-7-71
Whereas .I am satisfied with respect to the person·
known as Shri Nishi Kanta Monda!, son of Shri Radhanath Monda! of Dacca para, P. S. Bcmgaon, Dt. 24F
Parganas that with a view to preventing him from acting in any manner prejudicial to the maintenance of
public order, it is necessary so to do, I therefore in exercise of the powers conferred by sub-section ( 1) read
with sub-section (3) of section 3 of th>,! West Bengal
(Prevention of Violent Activities) Act, 1970 (PresiG
dent's Act No. 19 of 1970), make this·order directing
that 1the said Nishi Kanta Monda! be detained.
H
Given under my hand and seal of office.
Sd/-
DISTRICT MAGISTRATE
24-PARGANAS
6-7-71"
In pursuance of the above order, the petitioner was arrested
on July 8, 1971 and was served with the. order as well as the
226
SUPREME COURT RE"vRTS
[1973] l S.C.R.
grounds of detentio_n on ·the same day.
On July 10, 1971
~e
District Magistrate sent report to the State Government about his
having passed the order for the detention of the petitioner. The
grounds of detention and other necessary particulars were . also
sent along with the report. The State Government, after .considering the report and other particulars, approved the detentton order
·on July 17, 1971. Repreeentation made by the petitioner against
his detention wa~ received by the State. Government on July 30,
1971.
The representation was considered by the Staie Goverl!-
:ment and rejected on August 5, 1971. The case of the pel!-
tioner wa~ placed before the Advisory Board -on August 6, 1971.
The petitioner's representation. was also
sent to ~ Advisory
Board.
The Advisory Board. after considering. the material
placed before it as well as the representation sent by the petitioner and afttlr giving him a heariilg in person, subjllittecl its report to the State Gmrernrnent on September 14, 19:7 I. Opinion
was expressed by the Advisory Board that . there was sufficient
cause for the detention of the petitioner. The State Government
passe.d an order on October 5, 1971 confirming the orde~ for the
detention of the petitioner.
The. conjjfuiation order was thereafter communicaie4 to ihe petiti<>ner.
The petition has been resisted by the State of W·~st Bengal
and the affidavit of Shii Chandi Charan Bose, D .,uty Secretary,
Home (Special) Department; Government of v 'st Bengal has
bee'l. filed in opposition to the petition.
Mr. Puri has addressed arguments amicus cur ae on behalf of
the petition.er, while the respondent State has b..en represented by
Mr. D. N. Mukherjee.
The first contention which has been advanced by Mr. Puri is that the Act was enacted by the President
in exercise of the powers conferred by section 3 of the West
Bengal State Legislature (Delegation of Powers)
Act,
1970.
According to section 3 of the last mentionecl Act, the power of
the Legislature of the State of West Bengal to make laws, which
had been declare.d by the Proclamation to be exercisable by or
under the authority of Parliament, was
conferred on the President. In the exercise ofthe said power, the President could, from
time to time whether Parliament was or was not in session, enact,
as a President's Act, a Bill containing such provisions as he considered necessary. Some other formalities, detailed in section 3,
were also required to be complied with by the President, but it
is not necessary for 1the purpose of this case to refer to them.
~ction 2 of. the aforesaid Act defined "Proclamation" to mean
the Proclamation issued on the 19th day of March, 1970, under
article 356 of the Constrtution by the President, and published
with the notification of the Government of India in the Ministrv
of Home Affairs ~o. G.S.R. 490 of the said date.
It is urged
A
B
c
D
F
G
H
A
c
D
F
G
H
N. K. MONDAL v. WEST BENGAL (Khanna, J.)
227
by Mr. Puri tha.~ the above mentioned Proclamation was revoked
bY the President by another Proclamation in the beg.inning of
this month.
On account of the revocation of the ProclamatiO!l,
the President's Act No 19 of 1970; according to the
~arnW
counsel, ceas~ to have effect. As such, the petitioner could not
be kept in ®tention in pursuance of the order made under that
Act.
The~e is, in our opinion, no force in the above contention because i~ is ha$ed upon the assumption 'lhat the lll_W made by· the
President c~ to operate immediately upon '\ho; revocation of
the Proclamation. This assumption is not correct and fUllS. contrary t«;> clause (~) of article 357 of the Co~tution. According
t;> that clause, "any law made in exercise of the Jll)Wer of the
Legislature of the State by Parliament or the Pl"'.,,sident or other
authority referred l\o in sub-clause (a) of clause ( 1) vihich Parli~ent or !AA PtesWent or such other authority would not, but
f<J1; the isai.ie of a Pro~ti.Qll under article 356. have been competent ~ we sh;tll, to the extent of ~
incompetency, cease to
have etieCll: on the ex,pira\ion of a ped\lf;l of one year af\er
the
Proclama\i® h.as ~ed. to o~rate exceJ?t as res~ts thing d,one
or Qmined to be do~ before the i;xpiration of the said period,
ulilless the prqvisi\)lls. whi.ch shall s_o cease to
have effect are
sooner repel\led or re,e12act¢ with or v.:rth()ut modification
by
Act of !he apprOf)riate J,,eitislature". The ab()ve pro~on makes
it plain that 1he p,eriod fllf which a f:\W i;nade under article 356( 1)
remains in force is not co-timninous with the duration of the
Proclama'lit)ll. It has npt be~n disJ?1,1ted. tlwt tl:w President was
competent u,o4er clau~ n) of article 356 of ~he Constitution to
enact Act No. 19 o~ 1970. 'the saj,d Act, in. view of the provisions of cilμ.l.Se (2) Q~ article 357, shall continue to remain in
for.cc in s~iie of ~
revoca'ti.o!l of the Proclarnat_ion dated March
19, 1970 and would cease w h1;tve eff~t only on the expiry of
one year after the Proclamati,on has. ceased to operate except ~
respects things done or omirt:ed to· be don,e b~fore t:h.e exp~ration
of the sail! Period, unless the provisiQils of the Act are sooner
repe~ed or re-enacted with or without modilj,qtion by Aot of the
a1>1>1QPrial!,e l,egisllltu~e. As the aforesaid period of one year has
not expired and as the provisions of the Act have not been re-
~aled or re-eμacted with or without modification by Act of the
:appr()priate Legi,s!ature, the impugned, Act sh.ould be held to be
~ill in force.
In view of our fin,ding that the Act (Act: No. 19 of 1970)
is still in force, it is not necessary to consider th~ question as to
what would be the legal position in respect of subsisting detentions after the Act ceases to have
effect in
acc()rdance
with
article 357 (2) of the Constitution.
228
SUPREME COURT REPORTS
(19'73] 1 S.CR.
Argument has then been advanced by Mr. Puri that the impugned detention order was not in conformity with section 10 of
the Act as it did not specify the date of detention. Section 10
reads as under :
"10. In every case where a detention order has been
made under 'this Act, the State Government shall, within thirty days from the date of detention under the
order, place tefore the Advisory Board, constituted by
it U'lder section 9, the grounds on which the order has
beer. made and the representiution, if any, made by the
person affected by the order, and in case where the
order has been made by an officer specified in sub-section ( 3 ) of section 3, also the rer;ort m.ade by such
officer, under sub-section ( 4) of section 3."
According to the learned counsel, the words "within thirty days
from the date of detention under the ·order" in the section indi-•
cate that it is imperative on the part of the detaining authority
to specify the date of detention in the order. We find ourselves
unable to accede to this submission.
All that s.ection 10 contemplates is that the State Government should within 30 days from
the commencement of the detention place before the Advisory
Board the grounds on which the order has been made and the
representation, if any, made by the person affected by the order,
and in case where an order has been made by an officer specified
in sub-section (3) of section 3, also the report made by such
officer under sub-section ( 4) of section 3. There is nothing,
however, in the section which makes it obligatory on the part of
_ the detaining ;iuthority to specify the date of the commencement
of detention.
Detention starts from the time a detenu is taken
into custody in pursuance of the .detention order. In most of the
cases it may be difficult to state in the detention order as to when
the detention woui<l commence because the detaining authoritv
cannot be certain at the time of the making of the detention 01der
about the date on which the person ordered to be detained would
be taken into custody.
The possibility of the person ordered to
be detained avoiding or delaying his apprehension by absconding
or conr.ealing himself cannO't be ruled out.
In cas.e the contention advanced on behalf of the petitioner were to be accepted, the
detention order would cease to be enforceable in case the person
ordered to be detain.eel cannot somehow be apprehended on the
date mentioned in the order. We find ii difficult to draw such an
inference from the language of section 10 of the Act. The words
"from _the date of detention under the order'', in our opinion,
have reference to 1he date of the commencement of the detention
in pursuance of the detention order.
A
B
c
D
E
G
H
•
-
A
B
E
F
G
H
N. K. MONDAL V. WEST BENGAL (Khanna, /.)
229
Lastly, it has been argued by Mr. Puri that the grounds of
detention are not germane to ithe objects for which a person can
be ordered to be detained under the Act. In this connection, we
find that, according to the grounds of detention which were fur·
nished to the petitioner, he was being detained as _he was arting
in a manner prejudicial to the maintenance of public order as
evidenced by particulars given below :
"On 12-2-71, at about 02.00 hrs., you and some of
your associates being armw with bombs and other
lethal weapons
attacked Shri K. K.' Naskar, I.A.S.,
S.D.O., Bongaon and his guard by hurling bombs and
thereby causing injuries to the guard constable when
they came out on hearing sounds of explosion of bombs
near the quarters of Shri S. C. Sarkar, "MagisttaJte 1st
Class, Bongaon, at Amlapara near Bongaon Court.
You, thereby, created a panic in the locality and disturbed· the public order.
(2) On 23-2-71 between 10.45 hrs. and 02.15 hrs.
Bongaon Police on receipt of a secret information
searched a house at SubhaSlJalli, Bongaon and recovered
3 high explosive bombs and some explosive materials
from you and your associates possession."
According t6 section 3 of the Act, 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 the security of the
State or the maintenance of publir: order, it is necessary so to do,
make an order directing ithat such person be detained. District
Magistrates a:nd some other officers under sub-section (3)
of
section 3 of the Act have been empowered, if satisfied as provided
in sub-section (1), to exercise the powers conferred by the said
sub-section. According to clause (d) of sub-section (2) of section 3 of the Act, for the purposes cf sub-section ( 1) the expres-
. sion "acting in any manner prejudicial to the security of the State
or the maintenance of public order" inter alia means :
"committing, or instigating any person to commit,
any offence punishable with death or imprisonm~nt for
life or imprisonment for a term extending to seven y~ars
or more or any offence under the Arms Act, 1959 or
the Explosive Substances Act, 1908, where the commission of such offence eiisturbs, or is likely to disturb,
public order."
It is manifest from the above definition that the expression "act·
ing jn any manner prejudicial to the maintenance of public
order" would include the commission of an offence under the
Explosive Substances Act, 1908 when the commission of such
offence disturbs or is likely to disturb public order. Particulars
230
SUPREME COURT REPORTS
(1973] l S.C.R.
supplied to 1the petitioner regarding the incident of February 12..
A
1971 show that the petitioner and his associates hurled bombs
near the quarter of the S.D.O., Bongaon aild caused injuries to
his guard, as a result of which panic was created in the locality
and public order was disturbed.
The particulars regarding the
incident of February 12, 1971 clearly bring the case within ambit
of clause (d) of sub-section (2). of section 3 of the Act.
As
regards the second incident ofFebruary 23, 1971 we find that
the particulars show that three high explosive bombs and explosive m.iterials were recovered from the possession of the petitioner and his associ<ites on search of a house. The particulars
thus show that the petitioner was guilty of an offence under the
Explosive Substances Act. It is also obvious that the use of high
explosive bombs was likely to dis1turb public order.
The fact
that the high explosive bombs were recovered from the petit;oner
and his associates and taken into possession before they could
be used would not take. the case out of the purview of clause (d).
The earlier incident of February 12, 1971 gives a clear indication
of the propensity of the petitioner to use and explode such bombs.
The recovery of the high explosive bombs from the possession of
the petitioner prevented him from using artd explodlng the bombs
and disturbing public order.
As the object of detention is
to
prevent the detenu from acting in any maimer prejudicial to the
security of the State· or the maintenance of public order, the
grounds of detention supplied to the petitioner, in our opinion,
should be held to be germane to the purpose for which detention
order can legally be made under the Act.
In order to detain a
person with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public
order, as contc:>mplated by section 3(2)(d) of the Act, it is sufficient that the detaining authority considers it necessary to detain
him in ordet to prevent him from doing any of the acts merttioned
in clause ( d). If the past conduct and antecedents of the person
concerned reveal a tendency to do the acts referred to in clau·se
( d), the order of de<tehtion would be upheld, even though because
of some supervening cause like prompt action by the police, the
public order is not actually disturbed.
We, therefore, find no infirmity in the impugned detention
order. It also cannot be said that the detention of the petitioner
is not in accordance with law.
The petition consequently fails
and is dismissed.
K.B.N.
Petition dismissed.
B
c
D
E
F
G
•