GORA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The District Magistrate, 24-Parganas, by an order dated 29th December, 1973 made under sub-section (1) read with subsection (2) of Section 3 of the Maintenance of Internal Security Act, 1971 directed that the petitioner be detained as he was satisfied that with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of public order it was necessary to detain him. The fact of the making of the order of detention was reported by the District Magistrate to the State Government on 2nd January, 1974 and the State Government. by an order dated 8th January, 1974, approved the order of detention. Pursuant to the order of detention, the petitioner was arrested on 18th January, 1974 and immediately on his arrest he was served with the grounds on which the order of detention was made. The grounds of detention referred only to one incident as forming the basis of arriving at the subjective satisfaction as regards the necessity for detention of the petitioner and that incident was in the following terms:

(2.) The first contention urged by Mr. Mukhoty, learned counsel appearing amicus curiae on behalf of the petitioner, was that the solitary incident set out- in the grounds of detention was so remote from the date of the order of detention - in fact there was a time lag of about six months - that the District Magistrate could not possibly have arrived at his subjective satisfaction on the basis of that incident. The requirement of proximity, said Mr. Mukhoty, was not satisfied and the subjective ' satisfaction said to have been reached by the District Magistrate could not be regarded as real or genuine. Now it is true, as pointed out by this Court in Golam Hussain v. Commr. of Police, Calcutta, (1974) 4 SCC 530 = (AIR 1974 SC 1336 = 1974 Cri LJ 938) 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 v. State of West Bengal, (1974) 4 SCC 1 - (AIR 1974 SC 1264= 1974 Cri LJ 936). No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had 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 participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumstances of each case." There is, therefore, no hard and fast rule that merely because there is a time lag of about six months between the 'offending acts' and the date of - the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the 'offending acts' and the order of detention: It is a subsidiary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility therefore, lies Only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future. Here in the present case, the act alleged against the petitioner was a daring act of dacoity in a village by a gang consisting of the petitioner and his associates and if this act is judged in its correct setting, grave proportions and clear implications, it would be clear that it cannot be a stray isolated act but must be the work of a habituated and hardened criminal given to commit dacoities and the District Magistrate could, therefore, reasonably arrive at a satisfaction that with a view to preventing the petitioner from carrying on such activities it was necessary to detain him. Moreover, the affidavit in reply filed on behalf of the State Government by the Secretary in the Department of Public Relations and Youth Services, points out that in connection with the incident set out in the grounds of detention a criminal case was filed in the Court of the Sub Divisional Judicia1 Magistrate, Diamond Harbour on 26th June. 1973 and he was arrested in connection with that case, but it appeared during investigation that witnesses were unwilling to give evidence in open court against the petitioner and his associates and it was, therefore, felt that it was futile to proceed with the criminal case and it was decided to drop it against the petitioner. Now, if the criminal case were dropped, the petitioner would have to be released and in that event he would be free to carry on his nefarious activities. The District Magistrate, therefore, passed the order of detention on 29th December, 1973. The order of detention was in fact passed in anticipation of the petitioner being released as a result of dropping of the criminal case against him. The record of the case which was produced before us by the learned counsel appearing on behalf of the State showed that the criminal case was actually pending against the Petitioner on 3rd January. 1974. That means that the criminal case must have been dropped and the petitioner must have been discharged sometime between 3rd January, 1974 and 18th January, 1974, the latter being the date when he was once again arrested pursuant to the order of detention It is, therefore, not possible to say that the District Magistrate could not have arrived at a subjective satisfaction on the basis of the incident set out in the grounds of detention, or that the subjective satisfaction reached by him was sham or unreal.

(3.) Mr. Mukhoty on behalf of the petitioner then urged that even if the incident set out in the grounds of detention were true, it merely affected maintenance of law and order and did not have any impact on public order and hence there was no nexus between the act alleged against the petitioner and the subjective satisfaction reached by the District Magistrate. Now, there can be no doubt that the acts of the detenu on which a subjective satisfaction is claimed to have been reached by the detaining authority must have relevance to the formation of such subjective satisfaction. If the acts of the detenu relied on by the detaining authority are irrelevant, no reasonable person could possibly arrive at a subjective satisfaction on the basis of such irrelevant acts and the subjective satisfaction said to have been reached by the detaining authority would be a mere pretence. It is, therefore, necessary to consider whether the act alleged against the petitioner in the grounds of detention could be said to be relevant to the formation of a subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. What was the potency or radiation of the act alleged against the petitioner: did it affect maintenance of public order or was its prejudicial effect confined merely to maintenance of law and order The distinction between law and order, on the one hand, and public order, on the other, has been brought out admirably by Hidayatullah, C. J., in a recent decision in Arun Ghosh v. State of West Bengal, (1970) 3 SCR 288 = (AIR 1970 SC 1228 = 1970 Cri LJ 1136). The learned Chief Justice pointed out in that case the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance in the following words: