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TMI Blog1975 (1) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... or arriving at the subjective satisfaction on the part of the District Magistrate and they were as follows "1. On 23.1.73 at about 03.00 hrs. you along with your associates (i) Michael Antony, son of M. Danial @ Ram Murti of Purniatetao, P. S. Hirapur, District Burdwan (ii) Bhiren Antony, son of Michael Pitter of Purniateloo, P. S. Hirapur, Distt. Burdwan, and others committed theft in respect of two spans of electric in Street No. 23 of Chittaranjan township, P. S. Chittaranian, Dist. Burdwan and thereby clamped down darkness over the entire area causing inconvenience and hardship to the people in general living in that area, which is prejudicial to the maintenance of supplies and services essential to the community. 2. On 22-2-73 at about 04.00 hrs. you along with your associates (i) Michael Antony, son of M. Danial @ Ram Murti of Pumlatalao, P. S. Hirapur, Dist. Burdwan, (ii) Dhiran Antony, son of Michael Pitter of Purniatalao, P.S. Hirapur, Distt. Burdwan and others committed. thefts in respect conductors, 200 feet long from pole Nos. 1 and 2 at Cross Road No. 3, Sunset avenue, Chittaranjan township, P. S. Chittaranjan, Dist. Burdwan and thereby clamped down darkness in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the- legality of the continuance of the emergency and this question could not be properly determined unless there was an adequate plea to that effect and the Central Government had an opportunity of meeting such plea by filing an affidavit and notice was also given to the Attorney General to enable him to make his submission on this question. We would, therefore. confine ourselves only to the other contentions raised by Mr. R. K. Jain on behalf of the petitioner. The first contention urged by Mr. R. K. Jain on behalf of the petitioner was that the representation of the petitioner ought to leave been considered by an impartial tribunal constituted by the State Government and it was not sufficient compliance with the requirement of art. 22, clause (5) that it should have been considered only by the State Government. This contention was sought to be supported by reference to certain observations of Fazl Ali, J., and Mahajan, J., in A. K. Gopalan v. State of Madras.(1) Now it is true that Fazal Ali, J. observed in this case that "the right to make a representation which has been granted under the Constitution must carry with it the right to the representation being properly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.R. 225) and pointed out inter alia that "the appropriate Government is to exercise its opinion Ind judgment on the representation before sending the case along with the detenu's representation to the Advisory Board". So also in Haradhan Saha v. State of West Bengal(W.P. 1999 of 1973. dec. on Aug. 21, 1974) this Court, speaking through Ray, C.J., observed that "there is an obligation on the State to consider the representation- section 8 of the Act which casts an obligation on the State to consider the representation affords the detenu all the rights which are guaranteed by Article 22(5). The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law the order of the Government rejecting the representation of the detenu must be after proper consideration". It may be pointed out that both the decisions in Jayanarayan Sukul's case and Haraclhan Saha's case (supra) were decisions rendered by a Bench of five Judges. We must, therefore, hold that under section 8(1) of the Act, it is the appropriate Government that is required to consider the representation of the detenu. This, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order disclosed that "the substance of the charge Ind the essential answers in the representation" had been impartially considered. The learned Judge in fact started the discussion of this point by stating : "We are not persuaded that a speaking order should be passed by the Government or by the Advisory Board while approving or advising contain of Detention". In any event, the decision in Haradlian Saha's case (supra) being a decision rendered by a Bench of five Judges must prevail with us. We, therefore, reject the present contention of the petitioner. The next contention urged on behalf of the petitioner was that it was obvious from the order of detention that the District Magistrate had made the order of detention in a mechanical fashion without applying his mind to the facts of the case relating to the petitioner. We do not think there is any substance in this contention. The order of detention is in proper form and it does not betray any lack of application of mind on the part of the District Magistrate. Then Mr. R. K. Jain on behalf of the petitioner contended that the power of preventive detention conferred on the District Magistrate under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sential to the community and that was the reason why the District Magistrate thought it necessary to detain the petitioner with a view to preventing him from acting in such manner. The satisfaction of the District Magistrate as regards the necessity for detention of the petitioner was grounded on a reasonable prognosis of the future behavior of the petitioner based on his past conduct, namely, participation in the two incidents set out in, the grounds of detention, judged in the light of the surrounding circumstances. The District Magistrate in fact stated in paragraph 4 of the affidavit in reply filed by him that he was satisfied that "if the detenu-petitioner was not detained under the said Act he was likely to act further in a manner prejudicial to the maintenance of supplies and services essential to the community. The acts committed by detenu showed a course, of conduct which satisfied me that it was necessary to make the said order of detention". This contention must also, therefore, fail. Mr. R. K. Jain on behalf of the petitioner thenurged that there was nothing, to show that the Central 'Government had applied its mind to the case of the petitioner on receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfaction and we would therefore, be justified in accepting the statement of the District Magistrate in his affidavit in reply that the two incidents set out in the grounds of detention were the only material on which he based his subjective satisfaction for the purpose of making the order of detention. We accordingly reject this contention. The last contention urged by Mr. R. K. Jain on behalf of the petitioner was that the order of detention was made by the District Magistrate in colorable exercise of power, since no charge-sheets were filed against the petitioner in the court of the magistrate in respect of the two incidents set out in the grounds of detention and the criminal cases registered with Chitaranjan Police Station were dropped by filing final Report as true, briefly described as F.R.T. To understand this contention it is necessary to state a few facts which may be gathered from the affidavit in reply filed by the District Magistrate. The first incident took place on 23rd January, 1973 and in respect of it, a criminal case was registered with Chittaranjan Police Station on 12th February, 1973. Similarly, in respect of the second incident, which took place on 22nd Febr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the petitioner". detenu was, therefore, discharged in those cases. the argument urged on behalf of the detenu was that in the circumstances the order of detention should be held to be mala fide. This argument was rejected by a Division Bench in the following words : "In our opinion. even if it may be assumed that cases were registered against the petitioner by the police in respect of the two incidents mentioned in the grounds of detention and the, police as a result of the investigation could not procure evidence to sustain the conviction of the petitioner, that fact would not be sufficient to hold that the detention order made against the petitioner was mala fide. The matter is indeed concluded by a decision of this Court in the case of Sahib Singh Dugal v. Union of India.( [1966] 1 S. C. R. 313.) The petitioner in that case was arrested on December 6, 1964, for offence under the Official Secrets Act. On March 11, 1965, the Investigating Officer made a report to the Court to the effect that the petitioner and others involved in that criminal case might be discharged as sufficient evidence for their conviction could not be discovered during the investigation. The ..... 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