MADHUSUDAN MANDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) All these applications made under section 491 of the Code of Criminal Procedure for the issue of a Writs in the nature of Habeas corpus, relate to detention orders made under the Maintenance of Internal Security Act, 1971. The petitioners had all been taken into custody pursuant to order passed by various detaining authorities in exercise of powers vested in them under sub-section (1) read with sub-section (2) of section 3 of the Maintenance of Internal Security Act, 1971 with a view to preventing them from acting a manner prejudicial to the maintenance of public order. After section 17A of the Maintenance of Internal Security Act, 1971 was struck down by the Supreme Court in the case of (1) Shambhunath Sarkar v. State of West Bengal and Ors. (Writ Petition No.266 of 1972) all the detenues were ordered to be released forthwith "only because of the order of the SC". But as soon as they were released from jail they were all, again, taken into custody pursuant to orders made by detaining authorities but exactly on the same grounds as before. The validity of the second order of detention without fresh facts on identical grounds is the common question raised in all these petitions. Before the respective merits of the different applications are considered it will be convenient to deal with the common question involved at the outset.

(2.) The question is of some importance as cases of release from detention and re-arrest on identical grounds frequently come up before this Court. Its legal implication also merits serious consideration. The nature and source of the order of detention, the relation between section 3 and section 17A of the Maintenance of Internal Security Act, the scope of Article 22, 246 and Schedule VII of the Constitution, the consequences of section 17A being struck down by the Supreme Court and the nature of the provisions of the Maintenance of Internal Security Act particularly section 3 and section 14(1) were argued at length at the Bar in relation to the main question. Mr. Ajit Kumar Dutt, Mr. Somenath Chatterjee, Mr. A. P. Chatterjee and Mr. N. N. Guptoo appeared on behalf of different petitioners and the learned Advocate General appeared on behalf of the State to make submissions on the principles of law involved in these cases. The Court is indebted to all of them for their able assistance in the matter.

(3.) The contentions on behalf of the applicants may be brief summarized as follows: Mr. Ajit Kumar Dutt contended that the orders of detention were, in fact, made under section 3 of the Maintenance of Internal Security Act, 1971 (hereinafter called the Act). The scheme of the Act and the nature of the provisions contained in section 3 would show that section 3 is complete in itself so far as making of the order of detention is concerned. It is not inter-linked with any other section and non-compliance with other sections such as sections 8, 10, 11 or 12 of the Act does not render an order made under section 3 invalid or non est. He pointed out that section 17A of the Act more or less made applicable the provisions under section 17 to citizens and foreigners alike in cases falling within 3 (1) (a) (i) and (ii) of the Act and altered the periods mentioned in sections 10, 11, 12 and 13. It does not govern or affect satisfaction which is dealt with under section 3. Therefore, 17A being held bad or regarded as still born would not mean that the detention orders were also bad or stillborn. It was next argued that section 14(2) was applicable to the cases of the present detenues. A possible contention that section 17A being struck down section 3 itself should be held to have non-existent has no validity. Some of the Supreme Court decisions were relied on in this connection. Mr. Somenath Chatterjee emphasized that the detaining authorities expressly took recourse to section 3 in taking the detenues into custody, as the order, the grounds of detention served and the confirmation made by Government in each case reveal. Alternatively Mr. Chatterjee contended that even assuming that an order made under section 3 as well as under section 17A was composite in nature, striking down of 17A did not mean that the order was non-existent. It was merely inoperative and devoid of any force or binding effect. If section 17A was non establishment how could it be employed along with section 3" He further argued that release of a detenu is nothing but revocation or expiry of the order within the meaning of section 14(2) of the Act which was the only section permitting redetention on fresh facts. It was also contended that redetention implied that there was no proper application of mind. Mr. A. P. Chatterjee argued that it was Article 246 and Schedule VII which provided the substantive provision of law for preventive detention. Article 22 only provided some safeguards or restrictions in this respect. He argued that conditions of exercise of power were not to the same as power itself which was provided by Article 246 and Schedule VII. The power of detention under the Maintenance of Internal Security Act was provided by section 3 which was not declared ultra vires. Procedural parts being held bad could not effect the substantive part of the Act which was concentrated in section 3 unless, of course, it could be said that one could not exist without the other. Such was not the case here. Mr. N. N. Guptoo after adopting the arguments of Mr. Dutt and Mr. S. Chatterjee further urged that section 3 was the empowering section for detention. Section 17A did not provide for any power of detention nor mentioned the authorities who could detain a person. For the same one has to look to section 3. Section 17A was a matter of procedure and applied from the stage of reference to the Advisory Board. He also argued that section 14 applied on the facts of these cases.