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Dimbeswar Hazarika Vs. the State - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantDimbeswar Hazarika
RespondentThe State
Prior history
Thadani C.J.
1. This is a petition by one Dimbeswar Hazarika from jail under the provisions of Article 226, Constitution of India, read with Section 491, Criminal P.C., against an order of detention passed by the Governor of Assam,dated 2-3-50.which is in these terms:
GOVERNMENT OF ASSAM - Order by the Governor— Notification, Shillong, 2-3 1950.
No. C. 700/49. Whereas the Governor is satisfied with respect to the person known as Dimbeswar Hazarika, s/o late Radhanath Hazarika of Kacharig
Excerpt:
.....preventing him from acting, in a manner prejudicial to the safety of the state. when, therefore, a detaining authority decides to-take action under the preventive detention act, it must be assumed that it has acted in good faith, and the assumption of good faith will persist until it is displaced by demonstrable absence of good faith. in the first class of cases, a high court will find it impossible to hold that the grounds are insufficient, for the plain reason that something has been lawfully withheld which, if disclosed, might well demonstrate that the grounds of detention are quite sufficient. i am not satisfied that the petitioner has been illegally detained. it would be perfectly legal and valid. the failure of the detaining authority to give the grounds of detention within a..........of india came into force, for, the central act (preventive detention act, 1930) still empowers the detaining authority to withhold from the detenu such information as it considers fit to withhold from him in the public interest. in cri misc. case no. l of 1949, this court observed:we think the provincial government has a right to hold the view that communism and persons following the communist persuasion are a potential menace to public safety and maintenance of public order; that when such persons give effect to communist directives with a view to bringing about a revolution and (seizing political power, they are a real menace to public safety and maintenance of public order. it is not for a high court to say that such a view held by the provincial government is erroneous....section 4.....
Judgment:

Thadani C.J.

1. This is a petition by one Dimbeswar Hazarika from jail under the provisions of Article 226, Constitution of India, read with Section 491, Criminal P.C., against an order of detention passed by the Governor of Assam,dated 2-3-50.which is in these terms:

GOVERNMENT OF ASSAM - Order by the Governor— Notification, Shillong, 2-3 1950.

No. C. 700/49. Whereas the Governor is satisfied with respect to the person known as Dimbeswar Hazarika, s/o late Radhanath Hazarika of Kacharigaon, P. S. Sootia, District Darrang, that with a view to preventing him from acting in a manner prejudicial to the maintenance, of public order, it is necessary to make the following, order:

Now, therefore, in exercise of the powers conferred by Sub-section (1) of S 3, Preventive Detention Act, 1950 IV [4] of 1950 the Governor hereby directs that the said Dimbeswar Hazarika be detained.

A copy of grounds of detention is attached herewith, and he is at liberty to make a representation, which will be received by Government not later than 30 3-1950. Sd/—I. Majid, Secretary to the Government of Assam.

2. The grounds of detention as communicated to the petitioner are:

Grounds of Detention.

(a) He has been secretly holding camera meetings and propagating Communist ideologies among the. villagers and students of Sootia and its neighbouring places with a view to incite and lead them into unconstitutional action calculated to disrupt this present order by violent means.

(b) He has been actively indulging in anti-Government and subversive propaganda among the students and villagers of the locality of Sootia with a view to bring about lawlessness and disorder in the District.

3. The petitioner has characterised these grounds as vague and alleged that they are without any substance. He has set out certain other facts which have no bearing on the order of detention passed on 2-3 50; they relate to an order passed against the petitioner on 27-8-49, an order which has been superseded by the detention order, dated 2-8 50.

4. In Cri. Misc. Case No. 1 of 1949, this Court had occasion to consider the question as to the sufficiency or otherwise of the grounds of detention. It will not be out of place to reproduce some of the observations this Court made in that case—observations which I think still apply to cases which have been brought to this Court after the Constitution of India came into force, for, the Central Act (Preventive Detention Act, 1930) still empowers the detaining authority to withhold from the detenu such information as it considers fit to withhold from him in the public interest. In Cri Misc. case No. l of 1949, this Court observed:

We think the Provincial Government has a right to hold the view that Communism and persons following the Communist persuasion are a potential menace to public safety and maintenance of public order; that when such persons give effect to Communist directives with a view to bringing about a revolution and (seizing political power, they are a real menace to public safety and maintenance of public order. It is not for a High Court to say that such a view held by the Provincial Government is erroneous....Section 4 of the Act says that, in addition to the grounds, the Provincial Government shall furnish such other particulars as are, in the opinion of the Provincial Government, sufficient to enable a detenu to make, if he so wishes, a representation against the order. We are aware of the different interpretation which different High Courts in India have put upon the word 'grounds' and the expression 'such other particulars as are, in the opinion of such authority, sufficient to enable him to make, if he wishes, a representation against the order.' We think the sufficiency or insufficiency of the grounds and particulars communicated to a detenu must be decided with reference to the facts of a particular case, and not upon general principles. We will attempt to illustrate what we mean by an example. The Assam Government has in its possession a letter written by 'A' in these words:

'Dear Comrade, delighted to hear of your success in carrying out the directive of the Communist Party. Shall be present in person at the place you have indicated to participate in the next great fire —one of the many that will bring about a revolution dear to our hearts and put us in political power.'

On the strength of this letter, the Provincial Government decides to take action against 'A' under the Security Act of 1947. Manifestly having regard to the provisions of Section 4 of the lot of 1947, the Provincial Government will be under no obligation to communicate the entire contents of the letter to A. On analysing the letter, the Provincial Government might very properly come to the following conclusions:

(1) 'A' is a person following the Communist persuasion.

(2) 'A' believes in the Communist directives, one of which is causing fire.

(3) 'A' is prepared to participate in the next great fire at the place indicated in the letter,

(4) The desire of 'A' to participate in the next great fire is dictated by the desire to bring about a revolution and instal the Communist Party in political power.

For obvious reasons, the third conclusion based on the information contained in the letter, cannot be communicated to A. The remaining 3 conclusions are communicated to A by the Provincial Government as grounds and other particulars within the meaning of Section 4 in the following form:

(1) You are a Communist.

(2) You are actively engaged in putting into effect Communist directives.

(3) Your active participation in Communist directives dictated by a desire to bring about a revolution and instal the Communists in political power.

These grounds, isolated from the information which the Provincial Government is entitled to withhold, might easily give rise to different interpretations, but we doubt if there could be any room for different interpretations if the Provincial Government had also communicated to A he information which not only was it entitled to with hold, but which it acted properly in withholding. The illustration which we have given serves to illustrate the unwisdom of analysing the grounds communicated by the Provincial Government to a detenu in absence of the information which the Provincial Government may have in its possession and which it is empowered to withhold from the detenu in the public interest.

5. It is, of course, open to a detenu to require the detaining authority, when or before making a representation, to state whether the grounds of his detention are based upon any information in its possession which it is not prepared to disclose in the public interest, and if the answer of the detaining authority is in the affirmative, it is manifest that a High Court would not be in a position to say whether the grounds stated by the detaining authority are insufficient. It is only when the grounds are based upon information which can be disclosed to the detenu that a High Court will be in a position to pronounce' them as sufficient or otherwise. The Parliament of India in its wisdom has reposed confidence in the integrity of the Executive when it empowered the detaining authority to detain a person if it was satisfied as to the necessity for detaining, him with a view to preventing him from acting, in a manner prejudicial to the safety of the State. When, therefore, a detaining authority decides to-take action under the Preventive Detention Act, it must be assumed that it has acted in good faith, and the assumption of good faith will persist until it is displaced by demonstrable absence of good faith.

6. The grounds of detention are not the same thing as the facts which give rise to a state of satisfaction in the mind of the detaining authority as to the necessity for taking preventive action. For instance, on a given set of facts, one learned Judge may give one set of reasons for his judgment and another learned Judge may give quite a different set of reasons. If for any reason, the-reasons given by the learned Judge in his judgment appear to a superior Court as vague, the latter refers to the facts as deposed to in the evidence; it does not set aside the judgment merely because the reasons given by the learned Judge are vague.

7. An order of detention might be based on two kinds of information received by the detaining authority—one kind of information might be such as the detaining authority is empowered to withhold from the detenu in the public interest; another kind might be such as the disclosure of which the detaining authority does not regard as being against the public interest. In the first class of cases, a High Court will find it impossible to hold that the grounds are insufficient, for the plain reason that something has been lawfully withheld which, if disclosed, might well demonstrate that the grounds of detention are quite sufficient. In the second class of cases; where the detaining authority is in possession of information which it does not think fit to withhold in the public interest, a High Court will naturally be guided by the connection between the grounds and the information upon which they are basted. If a reasonable connection can be said to exist between the grounds of detention and the information upon which they are based, I do not think a High Court will be justified in saying that the grounds are vague or insufficient for the foundation of a detention order is the satisfaction of the detaining authority and not the High Court. If, on the other hand, no reasonable connection can be said to exist between the grounds of detention and the information upon which they are baaed, it would not be difficult for a High Court to say that the grounds are insufficient.

8. The Detention Act contains a provision whereby a detenu is entitled to make a representation to Government on receipt of the grounds of detention. If a detenu considers that the grounds as supplied to him are not sufficient to enable him to make a representation, he must inform the detaining authority accordingly and require the detaining authority to disclose the information upon which the grounds are based. On receipt of such a requisition by the detenu, the detaining Authority, in my opinion, is bound to disclose to the detenu all information in its possession, except the information which it considers, in the public interest, to withhold, and when a detaining authority withholds such information, * it must say so without disclosing the information.

9. In this case, the petitioner has not required the detaining authority to state whether the grounds of detention are based upon information which it is empowered to withhold in the public interest. Indeed he has made no representation at all. Nor has the petitioner required the detaining authority to disclose the information which it could disclose without prejudice to the public interest. I am unable, therefore, to say in this case that there is no connection between ground (a) and the information, upon which it is based. Ground (a) refers to the petitioner's 'holding of secret meetings and inciting students and villagers :of Sootia to resort to unconstitutional activities in order to bring about the disruption of the present order by violent means. I am not prepared to say that this ground, by itself, is insufficient to warrant an order of detention. I think it contains sufficient particulars to justify an order of detention. In this view, it is unnecessary to refer to the second ground.

10. The result is that the petition-is dismissed. I am not satisfied that the petitioner has been illegally detained.

11. Ram Labhaya, J—I have had the advantage of reading the judgment of my Lord the Chief Justice. I agree in the conclusion that the petition be dismissed, though I regret to say that I have found it difficult to agree entirely with the observations made by the learned Chief Justice in connection with what the grounds of detention may contain and on the procedure to be observed if grounds do not give adequate information. I state below, therefore, my humble interpretation of the relevant provisions contained in the Constitution and the Preventive Detention Act, 1950.

12. The question that has arisen in this case is whether the grounds supplied to the detenu are indefinite and vague and if so what is the effect of this circumstance on the detention order and on the subsequent custody.

13. Article 21, Constitution of India, provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The Parliament passed the Preventive Detention Act in order to invest the Central Government, State Governments, and certain other officers described in Section 3 (2), Preventive Detention Act, 1950, with powers to pass orders of detention against certain persons under the circumstances described in the section. The whole of the Preventive Detention Act, excepting Section 14, has been found to be intra vires by their Lordships of the Supreme Court. Clause (5) of Article 22, Constitution of India, provides that when a person is detained in pursuance of a detention order, the authority making the order shall as soon as may be, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

14. The right to have the grounds on which the detention order is made has been guaranteed by the Constitution and has been repeated in Section 7, Preventive Detention Act, according to which the grounds on which the order is based have to be communicated to the detenu as soon as it may be possible in order to afford him the earliest opportunity of making a representation against the order. The law of Preventive Detention is a serious encroachment on a fundamental right of the citizen. The Constitution has, therefore, laid it down that no one shall be deprived of his liberty without knowing the grounds of his arrest and detention and without the right of making a representation against the order at the earliest possible opportunity. The order of detention can be passed under Section 3 of the Act which provides that the Central Government or the State Government or a District Magistrate or a Sub-Divisional Magistrate or a Commissioner of Police in Presidency town may direct a person to be detained in order to prevent him from acting in a manner prejudicial to certain purposes stated in the section. The section doe3 not lay down that the grounds of detention must be communicated to the detenu along with the order of detention. Clause (3) of Section 3 merely provides that:

When any order is made under this section by a District Magistrate, Sub-Divisional Magistrate or Commissioner of Police, be shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessity for the order.

The grounds have to be communicated to the detenu under Section 7 as soon as it; may be possible in order that he should have the earliest opportunity of making a representation. It is evident that though no time may be lost in communicating the grounds of detention to the detenu, there may be some reasonable interval between the order of detention and the communication of the grounds to the detenu. An order which is not accompanied by-the grounds of detention, there, fore, would not be in contravention of the provisions contained in the Preventive Detention Act. It would be perfectly legal and valid. The failure of the detaining authority to give the grounds of detention within a reasonable time would make further detention illegal but the order would not be bad ab initio. Its initial validity would be unquestionable. If no grounds are furnished within a reasonable time from the date of the detention order, Section 7 of the Act would be contravened and the farther detention of the detenu would be illegal.

15. It is of fundamental importance that where a person is detained without trial, all the provisions of the Act under which he is detained must be given effect to and any departure from or non-compliance with them would make further detention illegal. It is the business of the Court to see that the terms of the statute are strictly construed and as far as may be in favour of the subject. A violation of a mandatory provision of the law relating to Preventive Detention would make the custody illegal even if the order was valid when passed. The grounds have to be furnished within a reasonable time and if these grounds are not furnished within a reasonable time, there would be a clear contravention of Section 7, which would affect the legality of detention; vide Murat Patwa v. Province of Bihar A.I.R. (35) 1948 Pat. 135 : (49 Cr. L.J. 132 F.B.).

16. The grounds of detention have to be supplied to the detenu in order to afford him an opportunity be make a representation against the order. Where grounds supplied to a detenu are vague and indefinite and he is, as a consequence of that fact deprived of the opportunity of making a representation, the result would practically be the same as if no grounds have been supplied to him. Giving of vague and indefinite grounds would not be a strict compliance with the requirements of Section 7. The result, even in such cases, would be that further detention would be illegal. If the grounds are general, lacking in such necessary precision, accuracy and clarity as would enable the detenu to make a representation against the order, there would be no compliance with the requirements of Section 7. The detaining authority can pass an order of detention only if it is satisfied that it is necessary to make a detention order. There always must be grounds for its satisfaction. These grounds are to be conveyed to the detenu, in order that he should be able to make an effective representation. The only facts which the detaining authority is not bound to disclose are those, the disclosure of which, it considers to be against the public interest. The result of the foregoing discussion is that where grounds are not supplied within a reasonable time or where they are so vague and indefinite that the detenu is unable to make any effective representation, the detention though valid initially becomes illegal. The detenu in these circumstances is entitled to ask for his release and there is nothing in Article 22 of the Constitution, or in the Preventive Detention Act which makes it obligatory for the Court to ask for the grounds of detention where they have not been supplied within a reasonable time or for the supply of further information in order to make the grounds definite when they have been supplied. Detection which has become illegal by the failure of the detaining authority to furnish grounds within a reasonable time or by reason of the vague and indefinite character of the grounds given cannot be made legal by obtaining grounds or further information from detaining authority for the benefit of the detenu. The detenu too is under no obligation to apply for grounds or for the further information before coming to Court in such circumstances. He can ask for the release on the basis of the failure of the detaining authority to comply with provisions contained in Section 7, Preventive Detention Act.

17. Cases, however, can be conceived where grounds supplied are such that though lacking in some particulars they cannot be regarded as so vague and indefinite that they adversely affect or impair the right of making a representation. The omission of such particulars does not affect the legality of detention. In such oases there is nothing to prevent the detenu from asking for further particulars in order that his representation may be complete. If the detaining authority does not furnish particulars, it is Open to him to place his difficulties before the Advisory Committee when making his representation. The Court cannot assist him even in such a contingency. All that the Court has to see is that the detention is strictly in compliance with the provisions of the Preventive Detention Act. If the only objection to the order is that the grounds furnished are so vague and indefinite that no effective representation could be made, the duty of the Court would end if it comes to the conclusion that the grounds are not indefinite and vague and that there has been no failure on the part of the detaining authority to comply with the directions contained in Section 7, Preventive Detention Act. When the Court comes to this conclusion it has no more functions to perform. It is under no obligation to demand further particulars from the detaining authority in order to assist detenu. The custody having been found legal, there is no occasion left for the use of the extra-ordinary powers which vest in the Court under Article 226, Constitution of India, read with S 491, Criminal P.C. It is for the detenu in such cases to demand particulars and if particulars are not furnished his only remedy seems to be to draw the attention of the Advisory Committee to this aspect of the matter. The jurisdiction of this Court can be invoked only when there is no proper or substantial compliance with the requirements of the Preventive Detention Act which constitutes a serious encroachment on an extremely precious right which the Constitution guarantees to all citizens of the Dominion. Collection of further particulars in such circumstances also does not seem to be within the scope of the proceedings under Section 491, Criminal P.C.

18. It is not possible to lay down any hard and, fast rule as to what the grounds should contain in order that the detenu may be able to make an effective representation. Whether grounds supplied in a particular case are vague and indefinite or whether they defeat the right to make an effective representation is a question which must depend on the circumstances of each case. The detaining authorities have to see that the grounds furnished serve the purpose for which they are given. They should afford the detenu a chance of clearing himself of the charges made against him. He should have a reasonable opportunity of explaining the conduct which led to the belief in the mind of the detaining authority that his detention was necessary to prevent him from acting in a manner prejudicial to any one or more of the purposes mentioned in Section 3 of the Act. The previous acts or activities of the detenu or information about his future intentions may form the basis of an order of detention. His association with individuals or associations known for activities which bring them within the purview of Section 3, Preventive Detention Act, may also afford justification for a detention order. The substance of information which produces the belief which gives the detaining authority power to order detention without any trial should ordinarily be conveyed to the detenu in order that he should be able to show that the information received against him is false or untrue or that there was a mistake about identity or some other kind of misapprehension. A lawyer attending the meeting of a revolutionary body with sub-versive aims may possibly be there for an innocent purpose, vide Kanailal Paul v. Province of Bihar A.I.R. (36) 1949 Pat 369 at p. 377 : 50 Cr. L.J. 730 F.B.. Circumstances suggesting the likelihood of a person acting in a manner prejudicial to the maintenance of public order may be susceptible of an innocent explanation. The detenu should know or should have this information in his possession in order that the safeguard provided by the Legislature against mala fide, erroneous or inadvertent orders of detention, is not rendered illusory.

19. When past conduct is the basis of the order it should be possible for the detaining authority to give details of the activity with reference to the time and the place of such activity if available. Where future intention forms the basis of action, the facts and circumstances leading to the conclusion that an order of detention is necessary may be included in the grounds. The detaining authorities may sometimes have to act on strong suspicion. They may also act on material which is not legal evidence. In such cases circumstances inducing the belief on which action is taken may be stated. But the detaining authority is not bound to indicate or disclose the evidence on which it comes to its conclusion. It is also under no obligation to disclose its sources of information.

20. The observations made above as to the nature of information that may be supplied to a detenu are not, however, intended to be regarded as inflexible rules applying to all cases. The omission to include any of these particulars in a given case may not necessarily amount to a non-compliance with the requirement of Section 7, Preventive Detention Act, for whether there has been a substantial compliance with the requirement of law must necessarily depend on the circumstances of each particular case and can be decided only in relation to them.

21. The grounds may not be likened to a charge in a criminal case or to a judgment of a Court of law. Before a charge is framed, the entire evidence is before the accused with all the wealth of details that the prosecution can provide. The charge merely states in a nutshell what the evidence discloses against the particular person. Omission of certain details in a charge may not cause any prejudice to the accused. The judgment of a Court of law is based on facts disclosed in the evidence. Omissions in the judgment can be noticed by a reference to the record. A detenu who gets the grounds is not in the privileged position of an accused who has got all the evidence is support of the charge before him. He is similarly not in the position of any one who may have to show that the judgment of a Court of law is contrary to facts. He gets the grounds only and no further material. It is, therefore, necessary that the grounds should communicate to the detenu the substance of information that is available against him. If this is not done, there is danger of his right of representation being defeated.

22. The law gives the detaining authority the power to withhold information, the disclosure of which it considers prejudicial to the public interest. Where detaining authority considers the exercise of this privilege necessary it should indicate that other available information not included in the grounds of detention has been withheld in public interest. If this is not done, and the grounds Supplied are vague and indefinite, the Court would be justified in holding that further detention of the detenu is illegal.

23. In two cases decided by their Lordships >of the Supreme Court, Nos. 34 and 60 original jurisdiction, the grounds were found to be vague. The detaining authority had not indicated that any information had been withheld in public interest. The petitioners were ordered to be released. It follows from these decisions of the Supreme Court that where information is withheld in public interest, the fact ought to be stated so that the Court, if moved under Section 491, Criminal P.C. can take it into consideration, otherwise it would be open to the Court to hold that further detention is illegal if it comes to the conclusion that the grounds supplied are vague and indefinite.

24. I agree with my Lord the Chief Justice that the grounds in this case are not so vague and indefinite that further detention may be found to be illegal. This petition, therefore, must fail.


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