PETITIONER:
SUDHIR KUMAR SAHA
Vs.
RESPONDENT:
COMMISSIONER OF POLICE, CALCUTTA & ANR.
DATE OF JUDGMENT:
18/12/1969
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
SHAH, J.C.
CITATION:
1970 AIR 814 1970 SCR (3) 360
1970 SCC (1) 149
CITATOR INFO :
RF 1972 SC 665 (9)
R 1972 SC1647 (5)
RF 1972 SC1656 (7)
RF 1972 SC2481 (10)
E 1972 SC2686 (3)
R 1973 SC 295 (7)
F 1973 SC 844 (1)
RF 1973 SC1091 (2)
RF 1987 SC2332 (30)
R 1990 SC1086 (18)
ACT:
Preventive Detention Act (4 of 1950), s. 3(2)-Acts
prejudicial to maintenance of public order-What are.
HEADNOTE:
The petitioner along with others, committed various offences
on three occasions. On the first occasion he attacked the
people of a locality with a knife and by hurling bottles at
them. On the other two occasions he attacked the people of
another locality, by hurling bombs at them. He was detained
under s. 3(2) of the Preventive Detention Act, 1950, with a
view to preventing him from acting in any manner prejudicial
to the maintenance of public order.
In a petition under Art. 32 for the issue of a writ of
habeas corpus,
HELD : The incidents were not interlinked and could not have
prejudiced the maintenance of public order. They were stray
incidents spread over a period of one year and four months,
directed against individuals, and did not disturb society to
the extent of causing a general disturbance of public
tranquillity; and hence,. the petitioner was entitled to be
released. The power to detain is an exceptional power to be
used in exceptional circumstances and cannot be used as a
convenient substitute for the ordinary process of law. The
acts complained of against the petitioner can at best be
considered as prejudicial to “law and order” and not “public
order” as required by the law relating to preventive
detention. [361 H; 362 A-C, E-F]
Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709 and
Arun Ghosh v. State of West Bengal,.[1970] 3 S.C.R. 288,
followed.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 378 of 1969.
Petition under Art. 32 of the Constitution for a writ in the
nature of habeas corpus.
D. P. Singh, for the petitioner.
G. S. Chatterjee for Sukumar Basu, for the respondents.
The Judgment of the Court was delivered by
Hegde, J. In this petition under Art. 32 of the Constitution
submitted from jail, the petitioner seeks a writ of
habeas .corpus directing his release from detention. We
have already directed the release of the petitioner on
15-12-1969. Now we proceed to give our reasons in support
of that order.
The petitioner was ordered to be detained by the Commis-
sioner of Police, Calcutta under s. 3(2) of the Preventive
Detention Act, 1950 (Act IV of 1950) by his order dated July
15,
361
1969. It is stated in that order that the petitioner was
ordered to be detained with a view to preventing him from
acting in any manner prejudicial to the maintenance of
“public order”. That order was confirmed by the State
Government after the same was approved by the Advisory
Board.
From the grounds served on the petitioner, it appears that
his detention was ordered because of the three instances
mentioned therein. It is said therein that on 28-2-1968
between 9-50 p.m. and 10-30 p.m. the, petitioner armed with
a knife along with some others, also armed, created
disturbance on the Northern Avenue in the course of which he
attacked the local people with knife as a result of which
one Ajit Kumar Biswas sustained stab injuries. It is
further alleged that during that incident, the petitioner
and his associates hurled sodawater bottles and brickbats
towards the local people endangering their lives and safety
and thereby they created. fear and frightfulness amongst the
people of the locality and thus affected public peace ,and
tranquillity of the locality.
The second incident mentioned therein is that on 29-10-1968
at about 9-10 p.m. the petitioner being armed with bombs and
accompanied by, some other created disturbance on Raja
Manindra Road, in the course of which he and his associates
hurled bombs, used swords, iron rods’ and lathis against the
local people endangering their lives and safety and thereby
they created fear and frightfulness in the locality
resulting in the disturbance of public peace and
tranquillity of that locality.
The last incident mentioned is that on 28-6-1969 at about
11-15 p.m., the petitioner and his associates armed with
bombs created disturbance on Raja Manindra Road in the
course of which they indiscriminately hurled bombs towards
the local ;people endangering their lives and safety and
thereby they affected -_public peace and tranquillity of
that locality.
From the record it does not appear that the petitioner was
-prosecuted for any of the offences mentioned earlier. It
is not known why he was not prosecuted. In the ordinary
course, if there is truth in the allegations made, he should
have been prosecuted and given an opportunity to defend
himself. The allegations made against the petitioner do not
amount to anything more, than that he committed certain
breaches of law.
The freedom of the individual is of utmost importance in any
civilized society. It is a human right. Under our Consti-
tution it is a guaranteed right. It can be deprived of only
by due process of law. The power to detain is an
exceptional power to be used under exceptional
circumstances. It is wrong to
362
consider the same, as the executive appears to have done in
the present case, that it is a convenient substitute for the
ordinary process of law. The detention of the petitioner
under the circumstances of this case appears to be a gross
misuse of the power conferred under the Preventive Detention
Act.
The three incidents mentioned in the grounds are- stray
incidents spread over a period of one year and four months.
These incidents cannot be said to be inter-linked. They
could not, have prejudiced the maintenance of ‘public order’
nor can they be held to be subversive of ‘public order’.
They were at best prejudicial to “‘law and order”. The
distinction between the maintenance of ‘public order’ and
maintenance of “law and order’ was brought out by this Court
in Dr. Ram Manohar Lohia v State of Bihar(‘). Therein this
Court pointed out that main tenance of “law and order” is a
conception much wider than the conception of maintenance
‘public order’. The latter is the prevention of a disorder
of grave nature., Every act that affects “law and order”
need not affect ‘public order’. If it is otherwise every
one who disturbs “law and order”, however petty the offence
committed by him may be, can be detained under the
Prevention Detention Act. This would be a total repudiation
of of the rule of law and an affront to our Constitution.
The lega position relating to the point in issue was again
recently considered by this Court in Arun Ghosh v. State of
West Bengal(‘), Therein it was observed that ‘public order’
is the even tempo of the life of the community taking the
country- as a whole or ever a specified locality.
Disturbance of “public order” is to be distinguished from
acts directed against individuals which do no disturb the
society to the extent of causing a general disturbance of
public tranquillity. It is the degree of disturbance and
it, effect upon the life of the community in a locality
which determines whether the disturbance amounts only to a
breach of “law and order”.
We are of the opinion that the grounds stated in support of
the detention cannot amount to a- disturbance of the,
maintenance of ‘public order’.
V.P.S.
(1) [1966] 1 S.C.R. 709.
(2) [19701 3 S.C.R. 288.
363
SUDHIR KUMAR SAHA
Vs.
RESPONDENT:
COMMISSIONER OF POLICE, CALCUTTA & ANR.
DATE OF JUDGMENT:
18/12/1969
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
SHAH, J.C.
CITATION:
1970 AIR 814 1970 SCR (3) 360
1970 SCC (1) 149
CITATOR INFO :
RF 1972 SC 665 (9)
R 1972 SC1647 (5)
RF 1972 SC1656 (7)
RF 1972 SC2481 (10)
E 1972 SC2686 (3)
R 1973 SC 295 (7)
F 1973 SC 844 (1)
RF 1973 SC1091 (2)
RF 1987 SC2332 (30)
R 1990 SC1086 (18)
ACT:
Preventive Detention Act (4 of 1950), s. 3(2)-Acts
prejudicial to maintenance of public order-What are.
HEADNOTE:
The petitioner along with others, committed various offences
on three occasions. On the first occasion he attacked the
people of a locality with a knife and by hurling bottles at
them. On the other two occasions he attacked the people of
another locality, by hurling bombs at them. He was detained
under s. 3(2) of the Preventive Detention Act, 1950, with a
view to preventing him from acting in any manner prejudicial
to the maintenance of public order.
In a petition under Art. 32 for the issue of a writ of
habeas corpus,
HELD : The incidents were not interlinked and could not have
prejudiced the maintenance of public order. They were stray
incidents spread over a period of one year and four months,
directed against individuals, and did not disturb society to
the extent of causing a general disturbance of public
tranquillity; and hence,. the petitioner was entitled to be
released. The power to detain is an exceptional power to be
used in exceptional circumstances and cannot be used as a
convenient substitute for the ordinary process of law. The
acts complained of against the petitioner can at best be
considered as prejudicial to "law and order" and not "public
order" as required by the law relating to preventive
detention. [361 H; 362 A-C, E-F]
Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709 and
Arun Ghosh v. State of West Bengal,.[1970] 3 S.C.R. 288,
followed.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 378 of 1969.
Petition under Art. 32 of the Constitution for a writ in the
nature of habeas corpus.
D. P. Singh, for the petitioner.
G. S. Chatterjee for Sukumar Basu, for the respondents.
The Judgment of the Court was delivered by
Hegde, J. In this petition under Art. 32 of the Constitution
submitted from jail, the petitioner seeks a writ of
habeas .corpus directing his release from detention. We
have already directed the release of the petitioner on
15-12-1969. Now we proceed to give our reasons in support
of that order.
The petitioner was ordered to be detained by the Commis-
sioner of Police, Calcutta under s. 3(2) of the Preventive
Detention Act, 1950 (Act IV of 1950) by his order dated July
15,
361
1969. It is stated in that order that the petitioner was
ordered to be detained with a view to preventing him from
acting in any manner prejudicial to the maintenance of
“public order”. That order was confirmed by the State
Government after the same was approved by the Advisory
Board.
From the grounds served on the petitioner, it appears that
his detention was ordered because of the three instances
mentioned therein. It is said therein that on 28-2-1968
between 9-50 p.m. and 10-30 p.m. the, petitioner armed with
a knife along with some others, also armed, created
disturbance on the Northern Avenue in the course of which he
attacked the local people with knife as a result of which
one Ajit Kumar Biswas sustained stab injuries. It is
further alleged that during that incident, the petitioner
and his associates hurled sodawater bottles and brickbats
towards the local people endangering their lives and safety
and thereby they created. fear and frightfulness amongst the
people of the locality and thus affected public peace ,and
tranquillity of the locality.
The second incident mentioned therein is that on 29-10-1968
at about 9-10 p.m. the petitioner being armed with bombs and
accompanied by, some other created disturbance on Raja
Manindra Road, in the course of which he and his associates
hurled bombs, used swords, iron rods’ and lathis against the
local people endangering their lives and safety and thereby
they created fear and frightfulness in the locality
resulting in the disturbance of public peace and
tranquillity of that locality.
The last incident mentioned is that on 28-6-1969 at about
11-15 p.m., the petitioner and his associates armed with
bombs created disturbance on Raja Manindra Road in the
course of which they indiscriminately hurled bombs towards
the local ;people endangering their lives and safety and
thereby they affected -_public peace and tranquillity of
that locality.
From the record it does not appear that the petitioner was
-prosecuted for any of the offences mentioned earlier. It
is not known why he was not prosecuted. In the ordinary
course, if there is truth in the allegations made, he should
have been prosecuted and given an opportunity to defend
himself. The allegations made against the petitioner do not
amount to anything more, than that he committed certain
breaches of law.
The freedom of the individual is of utmost importance in any
civilized society. It is a human right. Under our Consti-
tution it is a guaranteed right. It can be deprived of only
by due process of law. The power to detain is an
exceptional power to be used under exceptional
circumstances. It is wrong to
362
consider the same, as the executive appears to have done in
the present case, that it is a convenient substitute for the
ordinary process of law. The detention of the petitioner
under the circumstances of this case appears to be a gross
misuse of the power conferred under the Preventive Detention
Act.
The three incidents mentioned in the grounds are- stray
incidents spread over a period of one year and four months.
These incidents cannot be said to be inter-linked. They
could not, have prejudiced the maintenance of ‘public order’
nor can they be held to be subversive of ‘public order’.
They were at best prejudicial to “‘law and order”. The
distinction between the maintenance of ‘public order’ and
maintenance of “law and order’ was brought out by this Court
in Dr. Ram Manohar Lohia v State of Bihar(‘). Therein this
Court pointed out that main tenance of “law and order” is a
conception much wider than the conception of maintenance
‘public order’. The latter is the prevention of a disorder
of grave nature., Every act that affects “law and order”
need not affect ‘public order’. If it is otherwise every
one who disturbs “law and order”, however petty the offence
committed by him may be, can be detained under the
Prevention Detention Act. This would be a total repudiation
of of the rule of law and an affront to our Constitution.
The lega position relating to the point in issue was again
recently considered by this Court in Arun Ghosh v. State of
West Bengal(‘), Therein it was observed that ‘public order’
is the even tempo of the life of the community taking the
country- as a whole or ever a specified locality.
Disturbance of “public order” is to be distinguished from
acts directed against individuals which do no disturb the
society to the extent of causing a general disturbance of
public tranquillity. It is the degree of disturbance and
it, effect upon the life of the community in a locality
which determines whether the disturbance amounts only to a
breach of “law and order”.
We are of the opinion that the grounds stated in support of
the detention cannot amount to a- disturbance of the,
maintenance of ‘public order’.
V.P.S.
(1) [1966] 1 S.C.R. 709.
(2) [19701 3 S.C.R. 288.
363