DHARAM DAS WADHWANI

STATE OF UTTAR PRADESH

March 14, 1974

[H. R. KHANNA, & V. R. KRISHNA !YER, JJ.] Practice-Criminal Trial-Circun1stantial evidence-Appreciation of

The accused, a compounder in a hospital was charged with the offence under s. 328 I. P. C., of administering poison to one of the two doctors of the hospital. He was acquitted by the trial court but found guilty by the High Court. Dismissing the appeal to this Court,

HELD : The critiCal rule of proof by circumstantial evidence, is that such testimony can be the probative basis for conviction only if one rigorous test is satisfied, namely, that the circumstances must make so strong a mesh that the innocence of the accused is wholly excluded itnd on every reasonable hypothesis the guilt of the accused must be the only inference. Every evidentiary circumstance is a probative link, strong, or weak, and must be made out with certainty.

Link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. Each link, taken separately, may just suggest but when hooked on to the next and on again may manacle the accused inescapably.

Ony then can a concatenation of incriminating facts suffice to convict a man.

If a reasonable doubt arises regarding the guilt of the accused, benefit of that doubt cannot be withheld from him. But proof beyond reasonable doubt cannot be distorted into a doctrin~ of acquittal when any delicate or remote doubt flits past a f<ble mind. [611E, GH, 6I2A-B]

In the present case, the accused bore a grudge against the victim. When he was requested by the victim to bring aspirin he brought it in two packets. There were traces of strychnine crystals in the paper of the packet from which the victim had swallowed what he thought was aspirin, and an analysis of the stomach wash showed that he had consumed strychnine. The accused falsely denied that there was any stock of strychnine. He took a quarter of an hour to get the aspirin, suggesting that he went into the store room to take out a little strychnine. The circumstance that the two packets contained different substances-aspirin in one and strychnine in another-shows that the accused took the powders from 2 differ .. ent bottles, eliminating the possibility of an accident.

When another doctor asked him a searching question about the aspirin the accused was seen to be trembling, The accused never showed any anxiety to save the victim. In the commital court he took a false plea of denial and modified his plea in the Sessions Court to present - a plausible defence. These circumstances lead to the only reasonable inference that he is guilty, and the other likelihoods are mere possibilities. [612C~G]

S. S. Bobade v. Slate of Maharash_tra (1973] 2 SCC 801 and Kali Ram v. Slate of Himachal Pradesh A. I. R. 1973 S.C. 2773 followed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 222 of 1970.

Appoal by leave from the Judgment and Order dated the 15th January, 1970 of the Allahabad High Court at Allahabad in Government Appeal No. 132of1967.

Nuruddin Ahmed, B. P. Singh AND A. K. Varm1, for the Appe[- lant,

0. P. Rana for the Respondent.

The Judgment of the Court was delivered by-

KRimNA !YER, J.-A few facts with unique features, attracting a recondite provision of the Penal Code, constitute the subject-matter

of the criminal case which ended in an acquittal in the sessions Court A reversed at the appellate level and is re-agitated before us in this appeal by special leave.

The offence for which the accused has been punished is one under s. 328, I. P. C., for administering poison to a doctor by a compounder with intent to cause hurt. We did bestow anxious reflection on the materials placed before us in the light of the submissions made by B counsel for the appellant, Shri Nuruddin Ahmed, but, with due regard to their peculiarities and probabilities, we have established ourselves onthe conclusion that the High Court has held right that the accused is guilty of the offence charged.

The prosecution case, in brief, takes us to a small hospital scene where we have two medical officers, P. Ws. 2 and 3, a compounderc the accused, and a peon, Badri.

The senior doctor, P. W. 2, arrives in the hospital around 9 30 a.m. with a bad headache and asks the accused, appellant for ten grains of aspirin. Some 12 or 13 minutes are taken for the appellant to bring to his own doctor aspirin which is readily available in the dispensing room. The appellant brings two packets, 'asprin' written on them, and the patient-this time the doctor himself-consumes one packet. Bitten by titterness of D taste unusual in aspirin, P. W. 2 asks the attender, Badri, to fetch a glass of water. By that time, P. W. 3, the other doctor, had come and is sitting in the next chair. P. W. 2 complains to P. W. 3 about the strange bitterness in the tongue, aspirin being tasteless. He gargles his mouth, washes his face with water and asks the attender to buy some atle leaves, apparently to overcom<> the bad taste. Thereafter he proceeds to his normal work and tries . to give injection to a E patient waiting, but begins to feel' shaky. Within a few minutes P. w. 2 has the sensation of cramps in the calf muscles and P.W. 3, the other doctor, is perplexed. So he goes into the dispensing room and asks the accused from which bottle he had given the aspirin.

The latter shows a bottle of aspirin kept there, and when asked whether he had accidently given strychnine denies that strychnine, a deadly poison, is in stock at all. Of course, the accused himself F begins to tremble. Any way, P. W. 3 seals the bottle of aspirin taken from the disl?"nsmg room as well as the paper of the p•cket in which the medicines taken by P. W. 2 was kept, and the other unconsumed packet.

Apprehensive of poisoning, P. W. 2 is removed to the District Hospital, where he is given a stomach wash. His condition becomes precarious and his statement is recorded by P.W.7, the Police Officer attached to the Kotwali Police Station, and a case G is registered under s. 328, I. P. C., against the accused, Ex. Ka. I.

P. W. 3 gives a written report, Ex. Ka. 2, and also the sealed packets to P. W. 7, the Police Officer.

Thereafter, investigation begins and the dispensing and store rooms are inspected and the stock register examined. No bottle of strychnine " seen in the dispensing room, but one containing 4 2 grams . of this lethal poison is founu in the store room-vide Ex. Ka. 8, the search memo.

The Chemical Examiner found on ualysis of the stomach wash that P. W. 2 had consumed strychnine. There were traces of stry-

D. D. WADHWAN1v. U.P STATE (Krishna Iyer, J.l 609

' chnine crystals in the paper of the packet from which P. W. 2 had swallowed the headache cure. The other packet, which was not li!ed, contained only aspirin. The sy!IJ.ptoms which P. W. 2 developed were clearly indicative of strychnine poisoning.

It has been found by the High Court that fr was the accused compounder who brought the two packets of medicine to P. W. 2.

Likewise, it has been fou'hd that it was the accused who dispensed the medici!le and that there was no strychnine in the dispensing room, but there was some quantity of it in the store room. The High Court has also held that the accused's denial to P. W. 3 that there was no strychnine available in stock was false and that the interrogation so upset the accused that he began to tremble. ·

These are the broad findings which have led to the conviction of the accused, whose stand, however, was one of denial. He agreed, while examined in the sessions court, that P. W. 2 had told Badri, the attendant, to bring aspirin and he in turn told the accused that Doctor Saheb had wanted two 'purias' of aspirin, whereupon the accused told Badri that aspirin packets were kept ready there and he had better take them out and give to the doctor. In short, he disconnected himself from the doctor's request for aspirin or the delivery of the two packets of medicine. The further answer of the accused was that P. W. 3 merely asked him where the bottle of aspirin was and not where the bottle of aspirin from which he gave the packet to P. W. 2 was. That is to say, the incriminating component of that part of the testimrny of P. W. 3 is denied by the accused.

He denies again that he told P. W. 3 that there was no strychnine in stock while, as a fact, 4 2 grams thereof were found in the store room.

He suggests an answer to why such a case should have been started against him that it is due to the grudge P. W. 3, Dr. Baijal, bore against him. In this context, it is meaningful to note that before the Committal Court he took a patently false stand, namely, that P.W. 2 had neither asked him foe aspirin nor had he dispensed any to him.

Indeed, he has resorted to an audacious plea that "purias are dispen.'led by the hospital attendants . . . . three persons work as hospital attendants; I got rest on every Friday and on that day I enjoy holiday." The obvious attempt was to fob off the poisonous packet on the hospital attendant. Jn the Session Court, however, he abandoned this impossible position and put forward a more plausible ease, trying to cash in hopefully on Badri, the peon being set up as a dispensing chemist so far as the puria in question was concerned.

The Sessions Court acquitted the accused on a perverse view of the evidence. Although the learned' Judge has set down the points pressed into service by the prosecution_properly, he has gone off at a tangent into an invfitigation as to why the paper with which the poisonous puria was made was not mentioned in Ex. Ka. 2. He gets entangled in a serious series of trivialities and magnifies minor militating circumstances to persuade himself to the conclusion that there was something very fishy in \he investigation on this aspect.

SUPREME COURT REPORTS [ 1974 I 3 S.C.ll.

The learned Sessions Judge asks why the accused should have given two purias instead of oqe, and why he should have taken the chance of the doctor taking the innocuous puria out of the two, if he had an offending intent. He works himself up into the chance possibility of strychnine getting into the doctor's body through the water he drank after the powder was taken, forgetting that P. W. 2 com plained of the b.itter taste when he took the powder and not after he' drank the water. '

The learned Sessions Judge observed :

"The possibility of the strychnine having found its way in the system of Dr. Sen Gupta by some way other than the contents of the Puria cannot at all be excluded, for there is evidence of Dr. Sen Gupta himself that he took the powder of the Puria along with water. whih Badri had brought and the possibility of strychnine being in the water cannot be excluded."

Another casual circumstance which the Sessions Judge chases is that the hospital peons prepare mixtures and powders, sugges ting thereby that the purias in question might have been got pre

pared by Hospital peons and not the accused. Yet another fanci ful argument which has appealed to him is, in his own words, that:

"Dr. Sen Gupta has admitted that strychnine is used in other medicines also. It, therefore, cannot be safely ruled out that the strychnine found its way into one of the aspirin Puri as already prepared and accidently that Puria was taken by Dr. Sen Gupta."

Not content with these freak conjectures, the learned Sessions Judge fancies that had the accused an intention against his victim, he would have given him ten grains of strychnine which would have knocked him down at once since one part of strychnine in 7000 parts of water would have made the whole quantity bitter and even half a grain of strychnine could have been a fatai'dose. On the question of motive, the Sessions Judge has again made mistakes, and as for the long interval for supplying the packets, the Judge has a convenient personal theory:

"Anyone who has any experience of how a dispenser works at a hospital knows that they are neither very prompt nor very efficient. After all Dr. Sen Gupta was only havil)g a headache and there was no immediate urgency."

We could easily illustrate more of this species .but desist from doina so as it is unnecessary. All that we need say is that a court is not concerned with fantastic possibilities but with practical realities.

The learned Judges of the High Court have set the record straight, if we may say. so. They have come to the conclusion that H it was the accused who was directed to bring aspirin and it was he who brought the two packets, the contents of one of which were poisonous. The learned Judges have held on a study of the evidence

D. D. WADHWANJ V U.P STATE (Krioh11<1 Iyer, ],) 6 lr

that the accused's plea that there was no strychnine in stock was false and that he had sought to put off P. W.s 2 and 3 by such a false ans\\rer. The intention of the accused to introduce strychnine is in-· ferred by the High Court thus :

"In view of the circumstances that the two packets handed over to Dr. Sen Gupta .contained t\\'O different substance, it. is clear that the same were taken from two different bottles.

It cannot be, therefore, said that the respondent committed an accidental though bona fide mistake of giving the powder from a wrong bottle. The fact that he took powder from two different bottles whereas he ought to have taken from only one, itself shows that he had a guilty mind."

The effect of the motive made out in the case has not been lost sight of by the High Court, although too much has not been read into it, rightly if we may say so. The ultimate conclusion reached .by the learned Judges is that the accused gave a packet contarnrng strychnine to P. W. 2 for being consumed by him. On these facts, \vhich have been arrived at by a reasonable appraisal of the evidence, the present appellant has been found guilty by the High \=ourt.

Shri Nuruddin Ahmed, counsel for the appellant, rightly stressed that the prosecution eqifice was built on circumstantial v1de.nce ~~=ooMe~-~-~xnry~M~~= before serving the doctor. The critical rule of proof by circumstan!laf evidence, cqunsel reminded us, is that such testimony can be the probative basiS for conviction only if one rigorous test is satisfied.

The circun1stances must n1ake so strong a mesh that the innocence of the accused is wholly excluded and on every reasonable hypothesis thlO guilt of the accused must be the only inference.

Shri Nuruddin Ahmed suggested some maybes in the case excluding his client's culpability, and contended that the tes.t of incompatibility with the innocence of the accused had not been fulfilled at all here. As a proposition of law and commonsense, we agree that unlike direct evidence the indirect light circumstances may throw may vary from suspicion to certitude and care must be taken to avoiri subjectiv" pitfalls of exaggerating a conjecture into a conviction.

Every evidentiary circumstance is a probative link, strong or weak, and must be made out with certainty. Link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. Each link taken separately may just suggest but when hookoo on to the next and on again may manacle the accused inescapably. Only then can a concatenation of incriminating facts suffice to convict a man. Short of that is insufficient.

The question then is whether the cumulative effect of the guiltpoint.ing circumstances in the present case is such that the court can conclude, not that the accused may be guilty but that he must be guilty. We must here utter a word of caution about this mentaL

sense of 'must' lest it should be confused with exclusion of every contrary possibility. We have in S. S. Robade v. State of Maharashtra(_!) explained that proof beyond reasonable doubt cannot be distorted into a doctrine of acquittal when any delicate or remote doubt flits past a feeble mind. The<e observations are warranted by frequent acquittals on flimsy possibilities which are not infrequently set aside by the High Courts weakening the credibility of the judicature. The rule of benefits of reasonable doubt does not imply a .frail willow bending to every whif of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct. At the same time it may be affirmed, as pointed out by this Court in Kali Ram v. State of Himacha/ Pradesh (2), that if a Teasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from him.

Coming. to the case in hand, the Sessions Judge has been obsessed by mere maybes. Maybe, the attender made the packets; may be the doctor witnesses are adulterating truth; may be the motive is untrue or inadequate; may be the presence of two purias, one of whicl\ is aspirin, suggests the accused's innocence, and so on.

Doubt feeds on it"self. Here are certain incontrovertible facts.

The accused bore an immediate grudge against P. W. I-the adequacy of motivation is a subjective exploration. The accused was requested to bring aspirin and he brought it in two tiny packets.

He was perhaps not taking a chance because the doctor might well have swallowed both but for the intolerable bitterness of the first.

He falsely denied the stock of strychnine and took a long quarter of hour to get a little aspirin to his own boss, suggesting that he went into the store room to take a little strychnine. He trembled when

P. W. 3 turned to ask him a searching question. He never showed any anxiety to save the doctor out of the calamity and in the committal court took a false plea of denial modified in the Sessions Court to present a plausible defence. The following questions arise: Did' the accused prepare the medicine which did indubitably contain poison ? Yes. Did he do it accidently ?

No.

Did he have motive to harm the victim ? Yes.

Did he deny falsely in the committal court ? Yes, and that is itself a guilty circumstance.

Do other likelihoods neutralise the incrimination available from these circumstances ? No reasonable inferences but theoretical possi~ bilities. If crime is to be punished gossamer web niceties must yield to realistic appraisals. The compounder has dispensed a deleterious substance to his own doctor and has been rightly held guilty. The sentence does not call for interference either. We dismiss the appoal.

V.P.S.

(!) [19731 2 SCC,801.

(2) AIR 1973 SC 2773.

Appeal dismissed.

DHARAM DAS WADHWANI

STATE OF UTTAR PRADESH

March 14, 1974

H. R. KHANNA

s. 328

Nuruddin Ahmed

B. P. Singh

A. K. Varm1

P. Rana

KRimNA !

Penal Code

s. 328

Badri

Badri

Kotwali Police Station

s. 328

Krishna Iyer

Saheb

Badri

Baijal

Sen Gupta

Iyer

s 2 and 3

Nuruddin Ahmed

AIR 1973 SC 2773


GOLAM HUSSAIN ALIAS GAMA

l'.

THE COMMISSIONER OF POLICE, CALCUTTA, AND OTHERS

March 15, 1974

[H. R. KHANNA AND V. R. KRISHNA IYER, JJ.]

Mai11rena11ce of Internal Security Act, 1971-Ss. 3 (1) an:l 3 (2) • If detention af1er discharge in criminal -cases ma/a fide-Link between criminal activity and detention-Detention without duration if invalid-Public disorder-If acts aifned at a single person can disturb public order.

Pursuant to an order of detention under s. 3 (l)(a) (ii) read withs. 3 (2) of the Maintenance of Internal Security Act, 1971 the petitionet' was arrested for hurling soda water bottles, brickbats and bombs indiscriminately on a group of persons on different dates. The order of detention said that if left free and unfettered the pe~· titioner was likely to continue to disturb maintenance of public disorder by acting in a similar manner. In an earlier criminal case the petitioner was discharged by the court since no witness dared to depose against him in open court. Thereafter the petitioner was detained under the Act.

Jn a petition under Art. 32 it was contended : (I) that the detention was mala fide because the petitioner was detained under the Act after his discharge by the court for want of evidence (2) that there had been a long interval of nine months between the criminal incidents and the detention order, (3) that the order of detention which did not specify a period was violative of s. 12 of the Act and (4) that the detention was founded on prevention of public disorder while the acts imputed to th~ petitioner v."ere aimed at a particular person, not the genral public.

Dismissing the petition,

fIELD : Merely because the detaining authority had chosen to base the order of detention on.the discharge of the petitioner by the court for want of evidence it cannot be held that the order was bad in law. This branch of jurispru dence, as interpreted by this Court, has made it futile for a detcnu to urgethat because the grounds of detention have been the subject matter of criminal cases which have ended in discharge, therefore, the order of detention was ma/a fide.

The basic imperative of proof beyond reasonable doubt does not apply to the subjective satisfaction component of imprisonment for reasons of internal security. There may be extreme cases where the court had held a criminal case to be false and the detaining authority with that judicial pronouncement before him may not reasonably clain1 to be satisfied about prospective prejudicial activities based on what a court has found to be baseless. In the present case where the order of discharge was made purely for want of evidence on the scope that witnesses were too afraid to depose against a desperate character cannot come under the exceptions carved out by the court to this category. [616C-FJ

(2) It is true that there must be a live link between the grounds of criminal' activity alleged by the detaining authoritY and the purpose of detention. This credible chain is snapped if there is too long and unexplained an interval between the offending acts and the order of detention. If the detaining authority takes the chance of conviction and, when the court verdict goes against it, falls back on its detention pawcr to punish one whom the court would not convict, it is an abuse and virtual nullification of the judicial proc.-ess. But if honestly finding a dangerou~ f?CCSOD getting away th if. by overawing wit_nesses or concealing the comm1ss1on cleverly, an authority thinks on the matenaJ before him that there is likelihood of and need to interdict public disorder at his instance he may validly direct detention. Jn the present case the acts were 'serious being bomb hurling and brickbat 'throwing in public places creating panic. involvement of the petitoner was is~red nly during the investigation of the offences. No ground: C"x1sts for dtsm1ss1ng this statement as sham or factitious. [616G-H;617Cj

M. S. Khan v. C. C. Bose, A. I. R. 1972 S.C. 1670, Ashim Ku1nar v. State of West Bengal, A.I.R. 1972 S.C. 2S6l and Sahib Singh Dugal v. Union of btdia, [1966] I S.C.R. 313, followed. .

(3) The argument that detention without defined duration is ipso j:1r~ invalid cannot be sustained: No responsible government .should or would be irresponsive to the claim of citizen's freedom.

(622FJ Suna Ullah v, State (If J & K, A.LR, 1972 S.C. 2431, 2433, Dattatreya Moreshwar Pangarkar v. State of Bo1nbay, [1952] $.C.R. 612, S. Krishnan v.

The State of Madras, [1951] S.C.R. 621; 629, and Prabhu Dayal v. Distnct Magistrate, Kamn1p, [1974] 1S.C.C.103; 114, referred to.

(4) The nature of the act, the circumstances of its commission, the impact on people around and such like factors constitute the pathology of public disorder.

These acts cannot be isolated from their public setting nor is it possible to analyse its molecules as in a laboratory but take its total effect on the flow of orderly life: It may be a question of the degree and quality of the activity of the sensitivity of the situation and the psychic response of the involved people. To dissect further is to defeat the purpo~ of social defence which is the paramount purpose of pre ventive detention. [623BC]

Mohd. Subrati v. State of West Bengal, ll913J 3 S.C.C. 250; 256, referred to.

ORIGINAL JURISDICTION : Writ Petition No. 1977 of 1973.

Under Art. 32 of the Constitution of India for issue of a writ in the nature of habeas corpus.

D. N. Mukherjee and M. M. Kshatriya, for the petitioner.

D f. K. Chatterjee and G. S. Chatterjee, for the respondents.

The Judgment of the Court was delivered by

KRISHNA IYER, J.-A few issues of son1e moment, in the con~ text of civil liberties have been argued in this application for habeas corpus by Shri Mukherjee as amicus curiae.

The facts are disquieting at least for the reason that the petitioner an aged ailing man around 74, has been under detention since 1973 and, previous to it, had been facing a criminal prosecution which ended in a discharge on the date the detention order was clamped down on him; and counsel pressed the poignant circumstance that the ultimate order of Government dated September 28, ,1973 merely confirms the detention, being unlimited in duration and unspeaking on the terminus ad quem for the incarceration.

The relevant facts may be stated before discussing the highlights -of the arguments. The.Commissioner of Police, Calcutta, passed the initial order of detention dated July 19, 1973 on the petitioner, Golam Hussain alias Gama, under s. 3(1) (a) (ii) read with sub-section (2) of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) (hereinafter referred to as 'the Act').

The grounds which induced the detaining authority to pass the order were communicated tho same day.

They have been set out by the State as annexure to the affidavit filed in opposition to the petition and read thus :

"J. On 8-10-72 at about 22·25 hrs., you along with your associates Achche Lal Show of 1, Manickotolla Bazar Lane, Satya Narayan Jaiswal of 123/2, Acharya Prafulla Chandra Road, and others, all being armed with bombs, sodawater bottles created a great disturbance of public order on Gouri Sankar Lane in front of premises No. 8 by hurling oombs

VOLAM HUSSAIN v. COMMR. POLICE (Krishna Iyer, J.) 615

indiscriminately with a view to attack one Jiban Paul of 8,

Oouri Shankar Lane and his group in retaliation to an earlier quarrel that took place with the said Jiban Paul at 8 Gouri Sankar Lane with your associates Satya Narayan Jais_;, al and others. The incident terrorised the locality and threw out of gear the notmal life stream of the residents of the said locality amountingtopolice order. ·

2. On 9-11-72 sometimes betweeen 04-45 hrs. you along with your associates Ratish Pradhan alias Laltu of 23/IA, Abinash Kaviraj St., Benode Kr. Jaiswal. of 34B, Gulu Ostagar Lane and other all being armed with brickbats, soda-water bottles, bombs poles, created a great disturbance of public order on

Oouri Sankar Lane and Abinash Kaviraj Street by hurling soda-water bottles, brickbats jndiscriminately with a view to overawe the organisers of the Kalipuja that took place in front of 8 Gowi Sankar Lane and thereby to terrorise the locality.

As a result the lights of the above puja pandals were damaged.

This was in sequel to an incident that took place earlier at about 04-30 hrs when your associates Benode Kumar and others threw beer bottles at the Kalipuja panda! at 8, Gouri Sankar Lane, where some females were then dancing, which was then protested by the local people and the organisers of the said puja.

And ifleft free aad unfettered you are likely to continue to disturb manitenance of public order by acting in a similar manner as aforesaid."

' As required by the statute, the fact of detention was communi- ' catcd to the State Government which in turn reported to the Central Government.

The case was placed before the Advisory Board on August 13, 1973 and when the representation of the detenu was received it was duly considered and negatived by the State Government which thereafter made it over to the Advisory Board. After adverting to the facts, the Board advised continuance of the detention on September 21, 1973.

The consequential order confirming the detention was made by the State Government on September 28, 1973 and communicated to the detenu by the middle. of October, 1973.

We see no statutory shortcoming in the time sequence set out above.

But other grounds of attack have been levelled against the' order which deserve a Closer look.

Shri Mukherjee urged that although two criminal cases were started in connection with the two incidents. constituting the grounds for the detention, the petitioner's name was not even mentioned in the first information reports, and he was produced before the Magistrate only on July 5, 1973, and so the order based on those accusations was too irrational to be bona fide. The Commissioner of Police who passed the detention order has stated in his affidavit that there wet'c cases connected with the incidents of October 8th and November 9th, but the detenu could not be arrested until July 4 1973.

It is not denied that the petitioner's nae was not in the fi; st information

report, but he was apprehended later on the basis of evidence gathered during the investigation of the criminal case.

The Commissioner admits that the detenu was discharged by the Court "as no witness dared to depose against the detenu in open court." According to him "the said order of discharge was made on tho prayer of the police on July 19, 1973," and thereafter the petitioner was preventively detained.

Could such an order be castigated as malafide and oblique resort to the inscrutable order of detention when the prospects in the criminal case became bleak 1 This charge . has been .repudiated by the Commissioner .on oath and we are not able to hold with the petitioner that merely because the detaining authority has chosen to pass the order on the discharge of the petitioner by the court for want of evidence, the order is bad in law.

The branch of jurisprudence bearing on prohibitory detention has been crystallised by now and it is no longer a valid contention that because the accused has been discharged in a criminal case the ground of charge cannot c

 be relied upon by the appropriate. authoritY for passing an order of detention. The former relates to the punitivo..branch of the criminal law and relates tothe past commission, the latter to the preventive branch of social defence and protects the community from future injury. Whether we like it or not, this branch of jurisprudence, as interpreted by this Court has made it futile for a detenu to urge that because the grounds of detention have been the Subject matter of criminal cases which have ended in discharge, therefore, the order of detention is malafide. The basic imperative of proof beyond reasonable doubt does not apply to the 'subjective satisfaction• component of imprisonment for reasons of internal security.

To quarrel with such a, proposition is to challenge the wisdom of Parliament. Of , course, we can visualise extreme cases where a court has held a criminal case to be false and a detaining authority with that judicial pronouncement before him may not reasonably claim to be satisfied about prospective prejudicial activities based on what a court has ... found to be baseless.

But the present case where the order of discharge is made purely for want of evidence oil the score that witnesses were too afraid to depose against a desperate character cannot come under this exceptional category.

Another submission, equally an exercise in futility, made before us is that there has been a long interval of nine months between the criminal incidents of October and November, 1972 and the detention order of July, .1973.

Counsel hopefully relied on recent decision

of this Court in Lakshman Khatik v. State f West Bengal (1) and an G earlier decision in Rameshwar Shah v. District Magistrate Burdwan(2).

It is true that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, namely, inhibition of prejudicial activity of the species specified in the statute.

This credible chain is snapped if there is too long and unexplained an interval between the offending acts and the order of detention. Such is the ratio of proximity in Lakshman Khatik(l), H No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because lng ago the detenu had

(1) Writ Petition No. 344 of 1972; Judgment on 26·2-74. (2) [1964] 4 S.C.R. 921.

GOLAM HUSSAIN v. COMMR. POLICE (Krishna Tyer, /.) 61 7

done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement.

But no mechanical test by counting the months of the interval is sound.

It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long on the reason for the delay in taking preventive action, like information of partiClpaticn being available only in the course of an investigation.

W~ have to investigate whether the causal connection has been troken in the circumstances of each case.

If the detaining authority takes the chance of conviction and, when the court verdict goes against it, falls back on its detention power to punish one whom the court would not convict, it is. an abuse and virtual nullification of the judicial process.

But if honestly finding a dangerous pmon getting away with it by overawing witnesses or concealing the commission cleverly an authority thinks on the material before him that there is likelihood of and need to interdict public disorder at his instance he may validly difect detention.

The distinction is fine but real.

In the present case, the acts are serious, being bomb hurling and brick-bat throwing in public places creating panic.

The involvement of the petitioner is discovered only during the investigation of the offences.

The witnesses are scared away from deposing.

The Commissioner swears that in these special circumstances he did form the satisfaction requisite for ordering preventive detention.

No ground exists for dismissing this statement as sham.or factitious.

It is one thing to say that a more subjective satisfaction is sufficient to deprive a person of a fundamental freedom; it is another to reject that satisfaction as specious and non-existent.

Parliament makes the law and is responsible for it; the court only applies it, as it must.

We have, therefore, to reject the plea that because the criminal case has failed the detention must be bad.

M. S. Khan v. C. C. Bose, (t I Ashim Kumar v. State of West Benga/(2), and Sahib Singh Dugal v. Union of lndia\0) are but three among many cases takhlg this view.

We follow these precedents.

The next serious contention of Shri Chatterjee is that an order of detention which does not specify a period is violative of s. 12 of the Act. We may reproduce the relevant provisions which are of ancient vintage, being wholly or substantially in pari materia with earlier corresponding preventive detenfam sections. Nor is the position oflaw canvassed forres integra. Section 12 and 13 of the Mamtenance of Internal Security Act, 1971, as amended, read as follows :

"12(1) In any case where the Advisory Board has reportc~ that there is in its opinion sufficient cause for the detention c•f a person the appropriate Government may confirm the detention ordr and continue the detention of the person conoernod for such period as it thinks fit.

(2) (ll AJ.R. t972 S.C. 1670.

(2) A.l.R. 1972 S.C. 2561.

(3) [195() I S.C.R. 313.

I l-M4 SSup.Cl/75

13. The maximum period for which any person may be detained jn pursuance of any detention order which has been co1ifirmed under section 12 shall be twelve months from the date of detention, or until the expiry of the Defence oflndia Act, 1971 whichever is later ;

Provided that nothing contained in this section shall affect the power of the appropriate Government to revoke or modify the detention order at any earlier time." Section 1(3)ofthe Defence oflndiaAct, 197!, laiddown the duration of that Act and said that that Act shall remain in force for the duration of the proclamation of emergency and a period of six months thereafter.

Section 13 of the MISA, as amended, thus provided that the maximum period of detention under the Act shall be twelve months from the date of detention or until the expiry of a period of six months after the cessation of the proclamation of emergency, whichever is later.

The Court recently dismissed a similar argument in these words in Suna Ullah v. State of J & K (I) :

"It is urged that the failure of the State Government to specify the period of detention introduces an infirmity in the detention of the petitioner.

This contention, in our opinion, is without any force.

According to sub-8"ction (l) of Section 12 of the Act, in any case where the Advisory Board has reported that there is, in its opinion, sufficient caus~ for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.

Section 13 of the Act seci fies the maximum period of detention. According to that section the maximum period for which a person may be detained in pursuance of any detention order, which has been eonfirmed under Section 12, shall be two years from the date of detention.

It is further provided that nothing in the section shall effect the power of the Government to revoke or modify the detention order at any earlier time.

It is, in our opinion, difficult to infer from the language of Section 12 of the Act that the State Government while confirming the detention order should also specify the period of detention.

All that the section requires is that, if the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of the person, the Govern1nent may confirm the detention order.

There is nothing in the sec~ tion which enjoins upon the Government to specify the pzriod of detention order.

The concluding words of sub-section (1) of Section 12, according to which the Govern1nent may continue the detention of the person concerned for such period as it thinks fit, pertain to and embody the consequences of the confirmation of the detention order. It is, however, manifest that the period

for which a person can be detained after the confirmation of the detention order is subject to the limit of two years, which is. the maximum period of detention for which a person can be detained vide section 13 of the Act.

(I) A.LR. 1972 S.C. 2431; 2433.

GOLAM llUSSAIN v. COMMR. POLICE (Krishna Iyer, I.) 619

Apart from the above, we are of the opinion that it is not always practicable and feasible for the State Government at the time of confirming the detention order to specify the period of detention.

The continued detention of the detenu, subject to the maximum period-prescribed by the Act, depends upon a variety of factors and the State Government would have to take into account all the circumstances including fresh developments and subsequent events in deciding whether to keep the detenu in detention for the maximum period or to release him earlier.

It has accordingly been provided in sub-section (2)ofSection 13 of the Act that the State Go.vernment would have the power to revoke or modify the dete.ntion order at any time earlier than the exj>iry of two years from the date of detention." ·

The leading case, if we may say so, is Dattatraya Moreshwar Pangarkar v. State of Bombay(!) . The majority held that an order of detention under a substantially like provision was not invalid merely because the order did not contain the period of imprisonment. Mahajan, J., as he then was, held a contrary view.

But even the majority was split on their construction of the section.

Das, J., as he then was, read the section to imply no obligation to write into the order the duration, even though it may be desirable.

The learned Judge observed :

"It is said that the section should be construed irrespective of whether it occurs in a temporary statute or a.permanent one, and it is urged that if the statute were.a permanent one the section on the aforesaid interpretation, would have permitted an indefinite detention. . The answer is given by Mahajan J., in the following passage in his judgment in S. Krishnan v. The State of Madras (supra) at page 639 with which concurred(2) :-

"It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year.

Such temporary statutes cease to have any effect after they expire they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them.

The detention of the petitioners therefore is bound to come to anend automatically with the life ofthe statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention for those detained under "this law."

For all I know, such drastic and extensive power to continue the detention as long as it may think fit may not be given by Parliament to the executive Government in a permanent statute.

(I) (1952) S.C.R. 612.

(2) (1951] S.C.R. 621; 629. J

620 SUPllEMB COUl.T llEPOJlTS

[ 19741 3 S.C.L

But if it does think fit to do so, it will not be for the Court to. question the knowledge, wisdom or patriotism of the Legislature and to permit its dislike for the policy of the law to prevail over the plain meaning of the language used by the Legislature.

Apart from this consideration, there is a period specified in the sub-section itself, for as soon as the appropriate Government will cease to think fit to continue the detention it will revoke the detention order under Section 13 and the period of detention will automatically come to an end."

.. "If the specification of the period of detention is not at all sacrosanct and the appropriate Government may nevertheless

continue the detention as long as it thinks fit to do so, why is C the specification of a. period to be regarded as virtually or at all necessary? So far as the detenu is concerned, his detention will not be any more definite and less irksome if it is open to the appropriate Government to continue the detention by an indefinite number of orders made from time to time until the expiry of the Act itself by affiux of time in the case of a temporary statute or by its repeal in the. case of a permanent Act. It D is said that if we insist on a specification of a definite period when the confirmatory order is made and thereafter each time the period of detention is extended then the appropriate Government will have to apply its mind to the case of the detenu before it will make an order for further continuation of the detention, but that if we say that no. time need be specified, the appropriate Government will lose sight of the case and the detenu E will be detained indefinitely. I do not see why we should impute such dereliction of duty to the appropriate Government; but even if we do so and insist on the spocification of the period of detention we shall perhaps be driving the appropriate Government to fix the longest permissible period of detention ending with the expiry of the Act itself and then to lose sight of the case of the detenu. That, I apprehend, will do no good to the F detenu."

"In any event, the considerations of hardship urged upon us may make .it desirable that a period of detention should be fi<ed but this cannot alter the plain !\leaning of the language of the section : G

Patanjali Sastri, C. J., concurred. However, Mukherjea J. struck a different note ;

"The question now is whether the omission to state the period of further detention while confirming the detention order under section 11(1) of the Preventive Detention Act makes the detention illegal? The point1 is n<>t free from doubt, hut having regard to the fact that the new Preventive Detention Act is a temporary statute which was to be in force only up to the

GOLAM HUSSAIN v. COMMR. POLICE (Krishna Iyer,!.) 621

!st of April, 1952, and has only been recently extended to a further period of six months and no detention under the Act can continue after the date of exviry of the Act, I am inclined to hold that non-svecification of the further period in an order under section 11(1) of the Act does not make the order of detention a nullity. If no period is mentioned, the order might be taken to imply that it would continue up to the date of the expiration of the Act itself when all detentions made under it would automatically come to an end. Of course, the appropriate Government is always at liberty to terminate the order of detention earlier, if it considers proper' in exercise ofits general powers under section 13 of the Act." .. ··- ."It is perfectly true that an order for detention for an indefinite period is repugnant to all notions of democracy and individual liberty, bi; t the indefiniteness in the case of an order made under section 11(1) of the Preventive Detention Act is in a way cured by the fact that there is a limit set to the duration of the Act itself, which automatically prescribes a limit of time beyond which the order cannot operate. In my opinion, section 11(1) of the Preventive Detention Act does contemplate that a period should be mentioned during which the further detention of the detenu is to continue and the Government should see that no omission occurs in this respect, but I am unable to hold that this omission alone would make the order a nullity which will justify us in releasing the detenu." Chandrasekhara Aiyar J. concurred. -

The undercurrent of judicial unease at loss d citizen's liberty because the Executive subjectively opined that way is evident in the pages of the report, but the brooding feeling that the preventive detention legislation was a short-Jived statute and-all imprisonment without trial would terminate at a near date was writ large in all the opinions.

After all civil liberty ordinarily ends where detention without trial begins and commitment to the rule of law receives a rude shock where a permanent statute authorises long term.gaol confinement. That is why courts have been .strict even on procedural steps. Mathew J . . recently observed in Prablzu Dayal v. District Magistrate, Kamrup(I):

"The facts of the case might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services cs•ential to the community has been frustrated by what is popularly called a technical error. We say and that we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws; The history of personal liberty is largely the history of insistence on observance of procedure.

{I) W. P. No. 1496 of 1973; judgment dated October 11, 1973.-(1974! 1 sec 103, 114.

Observance of procedure has been the', bastion against wanton assaults on personal liberty over the years. Under our Constitution the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essential to the community cannot be over-emphasized. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of

good society. There are other values in a society.

Our country is t4king singular pride in the democratic ideals in pem>110l liberty. It would indeed be ironic if, in the name of , ocial security, we would sanction the subversion of thi5 liberty.

We do not pause to consider whether social security is more precious than personal liberty in the scale of values. For. any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be its impact on the maintenance of supplies and services essential to the community, when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is rigorously observed, however strange this might sound to some ears."

Tl)e basic feature of the Act as distinguished from -its predecessor is that it is no longer a temporary law and even the duration oftbe detention can be distant and considerable. We have misgivings about these anti-personal freedom facets but regard hopefully the presence and use of the power to revoke the detention on a review at any time.

Moreover there is no reason to think that this extraordinary power will be used indiscriminately or inordinately by a democratic government. A tenable interpretation that a detention order of prolonged and unspecified duration has to be abandoned for the time not merely because of the pressure of precedents but because we are assured by the State's counsel that the fulfilment of the imperative obligation of the State to review from time to time the changing social situation and the individuals' criminal potential tipping the scales in favour of enlargement of the detenu is taking place. No responsible government sho~1ld or would be irresponsive to the claim of citizen's freedom and the argument that deten1ion without defined duration is ipso Jure invalid cannot be sustained.

Shri Chatterjee took up the further position that the detention in the case on hand was founded on prevention of public disorder while the acts imputed to the petitioner ex (acie were aimed at a particular person and not .the public.generally. Lohia's(I.) cas~ and other rulings were said to reinforce this stance. The law 1s plrun and the decided cases are coilcordant. A criminal act hitting a private target such as indecent assult of a~ .woman or slapping a neighbour or knocking down a pedestrian wliile driving may not shake up public order. But

(1) ll966J 1 S.C.R. 7G9.

• E

GOLAM HUSSAIN v. COMMR. POLICE (Krishna lyer,1.) 623

a drunk with a drawn knife chasing a woman in a public street and all women running in panic, a Hindu or Muslim in a crowded place at a time of communal tension throwing a bomb at a personal enemy of the Other religion and the people all scared .fleeing the area, a striking worker armed with a dagger stabbing a blackleg during a bitter strike spreading terror-these are invasions of public order although the motivation may be againsi a particular private individual. The nature of the act the circum, tances of its commission the impact on people around and such like factors constitute the pathology of public disorder. We cannot isolate the act from its public setting or analyse its molecules a~ in a laboratory but take its total effect on the flow of orderly life. It may be a question of the degree and quality of the activity of the sensitivity of the situation and the psychic response of the involved people. To dissect further is to defeat the purpose of social defence which iS the paramount purpose of preventive detention.

Another argument, ratner flimsy, was made that a corrigendum reading 'public order' in the place of 'police order' was not communicated to the detenu. It is not so and merits no con, ideration. One or two other points, too trivial to be seriously noticed were also mentioned but we ignore them.

Basically we must realise the unpleasant truth that the new jurisdiction of preventive detention by executive fiat rounded on subjective satisfaction and jejune judicial protection is an erosion of a great right.

We may repeat what this Court in a different context recently observed in Mohd. Subrati v. State of West Benga/(I) :

"It must be remembered tha, the personal liberty of an individual has been given an honoured place in the fundamental rights which our Constitution has jealously protected against illegal and arbitrary deprivation and that this Court has been entrusted with a duty and invested with a power t1> enforee that fundamental right." The seriousness of the step must be appreciated by Government and continuous check-up on the need to prolong the prison life of the citizen made. The final cure for prejudicial activities threatening the survival of the communiy is not exe.cutive shutup of all suspects in prison for how long one is kept guessing. Such a strategy may alienate and embitter men who should be weaned away and won over. Jn the present case a septuagenarion alleedly sickly is confined in jail for an unspecified period: It may well be that his private enemy on whom he threw a bomb IS not there at all. It may also be that the detenu has altogether changed his outlook as many well-known terrorists have turned marvels of saintliness.

History will, we hope, serve the Agministration a~ reminder of unwitting misu~; \Vhile exercising near-absolute power.

We dismiss the petition.

P.B.R.

Petition dismissed.

(!) J1973] 3 s.c.c. 250; 256

GOLAM HUSSAIN ALIAS GAMA

March 15, 1974

H. R. KHANNA

V. R. KRISHNA IYER, JJ.

Internal Security Act, 1971

Ss. 3

s. 3

Art. 32

s. 12

Art. 32

Constitution of India

D. N. Mukherjee

M. M. Kshatriya

D f. K. Chatterjee

G. S. Chatterjee

KRISHNA IYER

Mukherjee

September 28, ,

Commissioner of Police, Calcutta

July 19, 1973

Golam Hussain alias Gama

s. 3(1)

Achche Lal

Satya Narayan Jaiswal

Krishna Iyer

Jiban Paul

Satya Narayan Jais

Ratish Pradhan alias Laltu

Benode Kr. Jaiswal

Benode Kumar

Central Government

August 13, 1973

September 21, 1973

September 28, 1973

Mukherjee

July 5, 1973

July 4 1973

Parliament

Lakshman Khatik(l

[1964] 4 S.C.R. 921

Chatterjee

s. 12

Section 12 and 13

section 12

Defence oflndia Act, 1971

Section 1(3)

Section 13

Section 12

Section 13

Section 12

Section 12

Section 12

section 13

Section 13

Mahajan

Das

Section 13

G

Patanjali Sastri

Mukherjea

section 11(1)

Preventive Detention Act

st of April, 1952

section 11(1)

section 13

section 11(1)

section 11(1)

Chandrasekhara Aiyar

Mathew

October 11, 1973.-(1974

sec 103, 114