Judgement

KHANNA, J:- This is a petition through jail for the issuance of a writ of habeas corpus by Nishi Kanta Mondal who has been ordered by the District Magistrate, 24 Parganas to be detained under section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President s Act No. 19 of 1970), hereinafter referred to as the Act. The order of detention reads as under:

"GOVERNMENT OF WEST BENGAL

OFFICE OF THE DISTRICT

MAGISTRATE 24-PARGANAS

ORDER

No. 352/71 Dated, the 6-7-71

Whereas I am satisfied with respect to the person known as Shri Nisi Kanta Mondal, son of Shri Radhanath Mondal of Daccapara, P. S. Bongaon, Dt. 24-Parganas that with a view to preventing him from acting in any manner prejudicial to 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), make this order directing that the said Nishi Kanta Mondal be detained.

Given under my hand and seal of office.

Sd/-

DISTRICT MAGISTRATE

24-PARGANAS

6-7-1971

Seal

2. In pursuance of the above order, the petitioner was arrested on 8-7-1971 and was served with the order as well as the ground of detention on the same day. On July 10, 1971 the District Magistrate sent report to the State Government about his having passed the order for the detention of the petitioner. The grounds of detention and other necessary particulars were also sent along with the report The State Government, after considering the report and other particulars, approved the detention order on July 17, 1971. Representation made by the petitioner against his detention was received by the State Government on July 30, 1971. The representation was considering by the State Government and rejected on August, 5, 1971. The case of the petitioner was placed before the Advisory Board on August 6, 1971. The petitioner s representation was also sent to the Advisory Board. The Advisory Board, after considering the material placed before it as well as the representation sent by the petitioner and after giving him a hearing in person, submitted its report to the State Government on September 14, 1971. Opinion was expressed by the Advisory Board that there was sufficient cause for the detention of the petitioner. The State Government passed an order on October 5, 1971 confirming the order for the detention of the petitioner. The confirmation order was thereafter communicated to the petitioner.

3. The petition has been resisted by the State of West Bengal and the affidavit of Shri Chandi Charan Bose, Deputy Secretary, Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.

4. Mr. Puri has addressed argument amicus curiae on behalf of the petitioner, while the respondent State has been represented by Mr. D. N. Mukherjee. The first contention which has been advanced by Mr. Puri is that the Act was enacted by the President in exercise of the powers conferred by section 3 of the West Bengal State Legislature (Delegation of Powers) Act, 1970. According to section 3 of the last mentioned Act, the power of the Legislature of the State of West Bengal to make laws, which had been declared by the Proclamation to be exercisable by or under the authority of Parliament, was conferred on the President. In the exercise of the said power, the President could, from time to time whether Parliament was or was not in session, enact, as a President s Act, a Bill containing such provisions as he considered necessary. Some other formalities, detailed in section 3, were also required to be complied with by the President, but it is not necessary for the purpose of this case to refer to them. Section 2 of the aforesaid Act defined "Proclamation" to mean the Proclamation issued on the 19th day of March, 1970, under Article 356 of the Constitution by the President, and published with the notification of the