LexSAMIR CHATTERJEE versus STATE OF WEST BENGAL
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18 B c D E F ·G A SAMIR CHA1TERJEE v. STATE OF WEST BENGAL March 21, 1975 [A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.] Maintenance of Internal Security Act, 1971-Disclwrge of petitioner in cri1ninal ca.~e at the request of police for want of evidence-If could be detained under the Act-Periodic review of cases of detention-If a legal cbligation-- S. 15-Scope of, The petitioner and two of his associates were charged with offcn~es under ss. 451, 324 etc. I.P.C. in one case. In another, the petitioner and three of his associates were charged with offences under ss. 148, 149, 307 etc. l.P.C. In respect of both the cases, however, the police applied before the Magistrate requesting that the petitioner be discharged for his detention under the !\1ain- t.enance of Internal Security Act, 1971. An order of detention under the Maintenance of Internal Security Act was then passed against the petitioner and his associates on two grounds name1y (1) that he and his associates reinforced by 25 others formed a violent mob near a workshop manufacturing defence materials and hurled brickbats creating fear, frightfulness and insecurity among the \\'Orkers and the authorities, and (2) fhat he and his associates armed with pistol and hlgh explosive bombs created a great disturbance of public order which resulted in panic and confusion on a public road. The detention orders against the associates were revoked because the Advisory Board reported that there was no sufficient cause for their detention. The petitioner, however, did not appear before the Board and his representation was considered by the State and forwarded to the Advisory Board. His second representation was not forwarded to the Advisory Board. In a petition under A11. 32 of the Constitution the petitioner contended (1) that the provisions of the Mainteflance o.f Internal Security Act had been used as a convenient substitute for the provisions of ordinary law for detaining th!.! petitioner because his discharge was asked for on the ground that he was going to be detained under the Maintena<.:e of Internal Security Act; (2) that the grounds furnished relate to maintenance of law and order and therefore it could not be made the basis of the order of detention; (3) that the detaining authority had not applied his mind to the petitioner's case as shown by the fact that the grounds of detention show that the petitioner had to be discharged from the criminal cases due to v.•ant of sufficient evidence for the successful prosecution whereas the order of discharge showed that he was discharged because he was going to be detained under the Maintenance of Internal Security Act, 1971; (4) that the grounds of detention \Vere vague; (5) that the Government had failed to periodically review the case of the petitioner and that had rendered his continued detention illegal and that this was a case where s. 15 of the Ac~ should have been applied <~nd the petitioner released. Dismissing the petition, HELD: (1) (a) It is not always possible for a Court dealing \vith an habeas corpus petition in the case of a person detainedi under the Maintenance of Internal Security Act to say whether in a case where a criminal case had .been registered against a person and then withdrawn, and he \Vas detained under the provisions of the Act, that was proper or not. The Court is not in possessioO of ;:ill th~ evidence to be able to decide for itself whether the ~osecution \Vould have been successful or not and without those m.'Lterials being available it is not possible for the Court to say that the punitive action should have been taken and not detention. It is the authority conducting the prosecution that would be in a position to decide whether evidence was available which could establish the guilt of the accused beyond reasonable doubt before the criminal court. Where the authority was not sure that S1:1ch inaterial was available it may not like to face the prospect of the prosecutton ' • SAMIR CHATTERJEE v. WEST BENGAL (Alagiriswami, !.) failing and being charged with vindictiveness or mala fides if thereafter the accused was detained preventively. The Court should be slow towards the conclusion that the detenu_ could have been succes.5fully prosecuted in the absence of all the material before it and then going on to criticise the detaining authority for not continuing the prosecution but detaining him. [25D-F1 In the instant cast th
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