1974 (2) TMI 73 - SC - Indian Laws

Whether for the reason that criminal prosecutions have failed the detention order is bad? Held that - This Court in many weighty pronouncements over two decades has stressed that art. 22(5) vests a real not illusory right that communication of facts is the cornerstone of the right of representation and orders based on uncommunicated materials are unfair and illegal. The detention in this case is illegal for denial of opportunity to make effective representation and direct that the petitioner be set free.

Issues Involved:
1. Legality of Detention Order
2. Grounds of Detention
3. Communication of Grounds
4. Malafide Intent
5. Proximity of Acts to Detention Order
6. Constitutionality of the Maintenance of Internal Security Act (MISA)
7. Arbitrary and Indefinite Detention

Detailed Analysis:

1. Legality of Detention Order:
The petitioner challenged his detention under the Maintenance of Internal Security Act, 1971 (MISA) on the grounds of substantive innocence and procedural injustice. The order of detention was issued by the District Magistrate, Burdwan, citing the petitioner's involvement in activities prejudicial to the maintenance of supplies and services essential to the community. The Supreme Court scrutinized the detention order in light of constitutional constraints under Article 22 and procedural safeguards provided by MISA.

2. Grounds of Detention:
The detention order was based on three specific instances of alleged criminal activities by the petitioner and his associates, which occurred several months prior to the detention order. The grounds cited were breaking open wagons and looting wheat and tea. The court found it mystifying that the detention order was passed many months after the alleged incidents and that the petitioner was arrested long after the order was issued.

3. Communication of Grounds:
Article 22(5) mandates that the grounds of detention be communicated to the detainee as soon as possible, and they must be sufficient to enable the detainee to make a representation against the order. The court emphasized that all material grounds which led to the subjective satisfaction of the authority must be communicated to the detainee without delay. The failure to communicate all relevant particulars to the detainee was found to be a violation of this constitutional mandate.

4. Malafide Intent:
The petitioner argued that the detention was mala fide, made with the ulterior purpose of compensating for his discharge in criminal cases. The court noted the long interval between the alleged incidents and the detention order, and the lack of denial or explanation from the authorities. However, the court held that the failure of criminal prosecutions does not necessarily invalidate a detention order, as the purposes of preventive detention differ from punitive measures.

5. Proximity of Acts to Detention Order:
The court observed that the acts cited in the detention order were not proximate in time to the order itself, raising questions about their relevance to the petitioner's current activities. The court stressed that a credible prediction of prejudicial activities must be made before issuing a detention order, and the detention should not be based on stale or irrelevant incidents.

6. Constitutionality of MISA:
The petitioner challenged the constitutionality of MISA, arguing that it violated Article 22(5) of the Constitution. The court rejected this argument, stating that the provisions of MISA must be interpreted in a manner consistent with Article 22(5). The court held that all particulars transmitted under Section 3(3) of MISA must be communicated to the detainee if they have a bearing on the determination to detain.

7. Arbitrary and Indefinite Detention:
The petitioner argued that the detention was arbitrary and could continue indefinitely if the Proclamation of Emergency remained in effect. The court dismissed this argument as a political issue outside the scope of judicial review. The court emphasized that the validity of the Proclamation of Emergency is based on the subjective satisfaction of the President and is not justiciable.

Conclusion:
The Supreme Court held that the detention of the petitioner was illegal due to the denial of the opportunity to make an effective representation. The court directed that the petitioner be set free, emphasizing the importance of fair communication of grounds and the right to representation as fundamental safeguards against arbitrary detention.

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