Bijoli Prova Banerjee vs State of West Bengal

Sarma Sarker, J.—These two cases are taken up together for consideration as the facts and the grounds of detention are identical in both.

The respective Petitioner was detained u/s 3(1) of the West Bengal (Prevention of Violent Activities) Act, 1970 (President''s Act XIX of 1970), hereafter referred to as the Act. It is alleged by the respective Petitioner that they were arrested in connection with two cases but were subsequently discharged on January 18, 1971. On the same date they were taken into custody without explaining or informing that they were being detained. It is further stated that no order under Sub-section (1) read with Sub-section (3) of Section 3 of the Act was served on or shown to the detenu and, as such, the detention is invalid. It is further stated that the grounds of detention were prepared and served on the respective detenu on January 22, 1971. The order of detention was passed to prevent the Petitioners from committing any act prejudicial to the maintenance of public order as it is alleged in the grounds served that the detenu committed the following acts, namely, (i) On November 25, 1970, at about 8 p.m. on Dwarika Nath Ghosh Lane the detenu and his associates and others caused a murderous attack by means of bombs on Murari Mohan Banerjee of 10 Dwarika Nath Ghosh Lane and decamped under cover of incessant explosion of bombs creating thereby a general feeling of fear, horror and insecurity in the locality, (ii) On November 25, 1970, at about 10-50 a.m. the detenu and his associates exploded high sounding bombs at the gate of Sarada Ashram Balika Vidyalaya at New Alipore with a view to force students to boycott classes and teachers from taking classes. By so doing the detenu and his associates adversely affected the system of education of the said school and also of other nearby school, such as, St. Thomas Institution and Kasiswari Balika Vidyalaya.

Mr. Manindra Mohan Sinha, the learned Advocate for the Petitioners, has argued before us, in the first place, that the detention on and from January 18, 1971, is invalid and illegal as the order of detention was not executed or served on that date and the service of the grounds of detention on January 22, 1971, cannot cure the defect of non-service of the order of detention. Secondly, it has been urged, that as the grounds of detention were prepared and served on January 22, 1971, the grounds did not exist on January 18, 1971, and, as such, there was no basis of satisfaction of the detaining authority on January 18, 1971. Thirdly, it has been urged that the grounds, particularly ground No. 2, are vague and irrelevant and, as such, the order of detention is invalid.

Mr. Chowdhury appearing for the State in Criminal Misc. Case No. 397 of 1971 and Mr. Dutt appearing for the State in Criminal Misc. Case No. 398 of 1971 opposed the Rules. It may be mentioned here that no affidavit-in-opposition, either by the detaining authority or by the serving officer, has been filed in this Court though the Rules were issued as early as on July 12, 1971, and the date for filing the affidavits expired by August 9, 1971. The affidavits were not filed upto the date of hearing but the Home Files were produced before the Court on behalf of the State to show the passing and the serving of the order of detention.

So far as the first point is concerned, it has been clearly denied in the respective petition that the order of detention was served or shown to the respective detenu on January 18, 1971. The affidavit in support of the petition was filed not by the detenu himself but by his mother. But, at any rate, there is a denial on behalf of the detenu that he has been legally and validly detained with effect from January 18, 1971. When detention is challenged in an application filed u/s 491 of the Criminal Procedure Code, it is for the State and the detaining authority to show that the detenu has been validly detained in accordance with law and procedure established by law with effect from January 18, 1971. As already observed, there is no affidavit on behalf of the detaining authority or even on behalf of the serving officer to show that the detention order was at all served or shown to the detenu in question on January 18, 1971. In the absence of such affidavit, mere production of the Home File is not crucial or decisive when the basis of the detention has been challenged by the detenu. If the question arises regarding the usual passing of orders u/s 3(4) or Section 12 of the Act where no personal service on the detenu is necessary the production of the document may be of some help, but where the detention itself is challenged as illegal and invalid mere production of the Home File is not decisive. Even looking at the Home File it will appear that there is purported to be an order signed by the detaining authority dated January 18, 1971. There is no separate date below the signature of the detaining authority showing the exact date on which the signature was made though as a general rule there may be a presumption that the date at the top is also the date of the signature. But when a matter is challenged on behalf of the detenu where there is at least an insinuation that the order of detention, if any, came into existence along with the grounds prepared on January 22, 1971, mere production of the Home File will not be sufficient in a quasi-criminal matter like the present if there is a denial by the detenu. It is for the State and the detaining authority to show affirmatively that the order of detention is legal and valid. That has not been done in the present case. Similarly, with regard to the signature of the detenu, we have no admissible material to find that it was really the signature of the detenu in the absence, of any affidavit, at least of the serving officer concerned. It may also be pointed out that there is no date below the signature of the detenu in the order itself which has been produced before us. It is true, the detenu concerned received the grounds of detention over their respective signature admittedly on January 22, 1971, when the grounds were prepared and served. Here also there is no elate below the signature of the respective detenu. From this it does not follow that the detenu refused to give the date either on January 18 or on 22, 1971. There is no averment or allegation regarding the same on behalf of the State or the detaining authority. On the materials and circumstances before us, we are unable to hold that the order of detention was served on or shown to the respective detenu on January 18, 1971, and we further hold that mere service of the grounds of detention on January 22, 1971, will not cure the initial defect of non-service of the order of detention on January 18, 1971, when they were taken into custody.

It was sought to be argued on behalf of the State that the Court will look into the validity of the detention on the date when the application was filed before this Court challenging the detention. In this connection reference was made to the decision in A.K. Gopalan Vs. The Government of India, . In the facts of that case it was found that many detenu were at first served with the order of detention under Rule 30(l)(b) of the Defence of India Rules on December 29, 1964, by the order of the Government of Kerala, but that order of detention was cancelled by the President of India on behalf of the Government of India on March 4, 1965, and thereafter the order was served on the detenu on. March 6, 1965. In the applications that were filed on behalf of the detenu,. not only the service of the order of detention by the Government of India on March 6, 1965, was challenged but also the legality and validity of the order of detention passed on December 29, 1964. Under those circumstances the observation came to be made that the invalidity, if any, of the order of detention prior to March 6 cannot be taken into consideration by the Court where there is a subsequent order of detention which was served on March 6, 1965. The present case is entirely different. It is not the case of the State that any order of detention was passed or served after January 18, 1971. If so, the only consideration before this Court is whether the detention of the respective detenu with effect from January 18 is valid or not. Judged by this standard the Supreme Court decision has no application in the facts of the present case or rather the Supreme Court decision cited above confirms the view that the detention on and from January 18, 1971, is a valid matter for consideration in these two cases.

Next it was urged that there was no necessity of service of the order of detention on the respective detenu as decided by a Division Bench of this Court in Kalyanmal Agarwalla Vs. District Magistrate, Midnapore and Others, But the grievance of the detenu in the present case is not whether a copy of the order of detention was served or not but whether the order of detention was at all served in accordance with Section 4 of the Act. It will appear from the decision of this Court and it is also obvious from Section 4 of the Act that the order of detention has to be executed in terms of Section 4 of the Act read with Section 80 of the Criminal Procedure Code. When a person is taken into custody he must be told why he is so taken and given reasons for taking him into custody though the detailed grounds of detention may be supplied within five days in terms of Section 8(1) of the Act. In the instant case, service in terms of Section 4 read with Section 80 of the Code of Criminal Procedure has been challenged and the State Government could not produce admissible legal materials to show that the detenu were taken into custody by serving the order of detention on January 18, 1971. It is not clear if the order of detention existed on January 18, 1971, when there is no confirmation on behalf of the State that the order existed on that date. At any rate, there is no admissible material to show that it was served in terms of Section 4 of the Act on January 18, 1971, or at any time thereafter. If the order has not been proved to have been served on January 18, 1971, there is no averment on behalf of the State that there was any service at all thereafter. If so, the order of detention has not been proved to have been served either on January 18, 1971, or on any subsequent date. Accordingly, the detention of the detenu in connection with these cases cannot be said to be legal or valid.

It was urged by Mr. Sinha in the second place that because the grounds of detention were prepared and served on the 22nd there could not be any satisfaction of the detaining authority for taking the detenu into custody on January 18, 1971. Mr. Sinha referred to Section 8 in this connection. But, Section 8 does not deal with satisfaction of the detaining authority at all. It deals with communicating the grounds of detention to the detenu. The satisfaction of the detaining authority has to be found from Section 3(1) of the Act and it is nowhere laid down on what materials the detaining authority need be satisfied. In fact, the materials on which satisfaction was based need not be disclosed or stated but, in view of the provisions of Article 22(4) of the Constitution and Section 8 of the Act, the grounds of detention have to be served on the detenu to enable them to make an effective representation against the order of detention. Satisfaction is one thing and the grounds of detention for the purpose of making an effective representation is another. We are, therefore, unable to hold that there was any invalidity regarding the detention because the grounds of detention were prepared and served within four days on January 22, 1971. In this connection we may refer to the argument of Mr. Dutt appearing for the State that under Article 2(3) the detenu need not be stated the grounds of detention or sent to the nearest Magistrate when a person is detained for preventive detention. But even so, Section 4 of the Act remains which enjoins execution of the order of warrant in terms of Section 80 of the Criminal Procedure Code. It will be absurd to uphold that after an order of detention was passed a person can be bodily kept in jail without informing the reason why he was being detained, if any, under Article 22 of the Constitution. At least u/s 80 of the Code of Criminal Procedure which lays down the procedure by which the warrant of arrest is to be executed, the detenu is entitled to know the reason for his arrest and, if challenged, to see the warrant of arrest though no copy need be served. The requirement of showing the warrant of arrest is of great importance to uphold the liberty of the subject because it will safeguard illegal arrest and cure any illegality that may be done by arresting before an order for issue of warrant was passed or writ of warrant was prepared. In the instant case, we are not satisfied that the order of detention was at least shown to the detenu concerned before they were taken into custody on January 18, 1971. But, as we have already observed, the preparation of the grounds of detention and service of the grounds of detention some four days after the order of detention do not make the detention invalid or illegal.

We now take up the third point urged by Mr. Sinha. It has been urged that the grounds alleged are vague and irrelevant. So far as ground No. 1 is concerned, it is relevant u/s 3(2)(d) of the Act and the names of the associates have also been given in the instant case. We, therefore, hold that ground No. 1 is not vague. So far as ground No. 2 is concerned, it is no doubt true that it has been framed in a language which is not fully clear, but if ground No. 2 is read as a whole and if we are to accept the facts stated therein, it will be found that there is an explosion of bomb at the gate of Sarada Ashram Balika Vidyalaya with a. view to force the students to boycott classes and the teachers from taking classes and thereby adversely affected the system of education of the said school and other schools. It is no doubt the words ''public order'' have not been mentioned in the ground itself, there is mention of ''public order'' in the preamble to the particulars mentioned in the grounds of detention served on the detenu concerned. Moreover, it will appear that public order need not necessarily confine to all sections of )the public. If it is found, as alleged in ground No. 2, that the intention was that the students cannot attend schools and the teachers cannot take classes and bombs were exploded with that end in view, then there can be no room for doubt that the students and their guardians and the teachers were prevented from normal tempo of their life, at least in connection with going to and attending the classes. It will also appear that bombs were exploded with an intention to create terror in the minds of students, their guardians and the teachers so that they did not come to the school either to attend the classes or to take the classes. Though the language is somewhat unscientific, yet the purpose as explained both in the ground itself and also in the preamble to the ground,'' makes it a case of disturbance of public order regarding the student community as a whole, as the allegation has been made that it affected the system of education not only in a particular school but also in nearby schools which have been named. We, therefore, find that ground No. 2 is also relevant and the allegations are not vague.

In the result, the Rules are made absolute. The detenu Biplab Banerjee alias Pintoo Banerjee in Criminal Misc. Case No. 397 of 1971 and Dilip Roy alias Pijush Ganguli alias Khokan in Criminal Misc. Case No. 398 of 1971 be set at liberty forthwith.

R. Bhattacharjee, J.

I agree.