Judgement

SHELAT, J. :- The order of detention impugned in this petition is as follows :

"ORDER

Dated 24-4-71.

No. 97/C

Whereas I am satisfied with respect to the person known as Shri Ananta Mukhi, @Ananta Hari, son of Gobardhan, @Gurai of Antpara, Chakbazir, P. S. Debra, Dt. Midnapore that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, I therefore in exercise of the powers conferred by sub-section (1) read with sub-section (3) of Section 3 of the West Bengal (Prevention of Violent Activities) Act. 1970 (President s Act No. 19 of 1970) makes this order directing that the said Shri Ananta Mukhi @Anant Hari be detained.

Given under by hand and seal of office.

Sd/- District Magistrate

Midnapore"

2. The question which falls for determination in this petition is whether detention directed by an order which recites that it was made upon satisfaction of the District Magistrate that the person concerned was acting in a manner prejudicial to the security of the State or the maintenance of public order is an order lawfully made. The argument was that the use of the disjunctive or , instead of the conjunctive and , showed either that the detaining authority was not certain under which of the two grounds namely, the security of the State or the maintenance of public order, he had reached his subjective satisfaction, impelling him to consider the petitioner s detention necessary, or that the order was passed mechanically, merely reproducing the language of S. 3 (1) without any application of mind as to whether the acts of the petitioner, actual or anticipated, were prejudicial to the security of the State or the maintenance of public order, or both. If it was the last, obviously, the order should have used the conjunctive and , not the disjunctive or . To appreciate the contention, it would be necessary to understand the object and the scheme of the Act.

3. By a proclamation, dated March 19, 1970, made under Article 356 of the Constitution, the President of India, being satisfied that a situation had arisen in which government in West Bengal could not be carried on in accordance with the provisions of the Constitution, assumed to himself the functions of Government of the State and declared that the powers of the State Legislature shall be exercisable by or under the authority of Parliament. In pursuance of the said Proclamation, Parliament enacted, on April 29, 1970, the West Bengal State Legislature (Delegation of Powers) Act, XVII of 1970 under S. 3 of which the State Legislature s power to make laws was conferred on the President, who was empowered to enact, whether Parliament was in session or not, as President s Act a bill containing such provisions as he considered necessary. In exercise of the powers contained in Act XVII of 1970, the President enacted the President s Act XIX of 1970. Since that Act was enacted in exercise of and in accordance with the powers of the State Legislature, the Act providing for preventive detention could be passed in terms and within the scope of entry 3 of the Concurrent List in Seventh Schedule to the Constitution, that is to say, for reasons connected with (a) the security of that State, (b) the maintenance of public order, or (c) the maintenance of supplies and services essential to the community.

4. Act XIX of 1970 was enacted to "provide for detention with a view to preventing violent activities and for matters connected therewith". Section 3, the construction whereof is called for in this petition, by its first sub-section confers power to make detention orders against certain persons. That sub-section reads as follows:

"The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such person be deta