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Biren Datta and ors. Vs. the Chief Commissioner of Tripura - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBiren Datta and ors.
RespondentThe Chief Commissioner of Tripura
Excerpt:
- - 4. on october 26. 1962. the president having been satisfied that a grave national emergency exists, whereby the security of india or any part of the territory thereof is threatened by the chinese aggression, issued a proclamation declaring the emergency, under article 352 of the constitution, that declaration of emergency was laid before both houses of parliament on november 8, 1962, and was approved by the rajya sabha on november 13, 1962, and by the lok sabha on november 14. 1962. after the proclamation of emergency as parliament was not in session and as the president was satisfied that circumstances existed which rendered it necessary for him to take immediate action for exercise of the powers conferred by clause (1) of article 123 of the constitution he promulgated the defence..... rajvi roop singh, j.c.1. the six petitioners (1. shri biren dutta, 2. shri benu sen, 3. shri dinesh deb barma, 4. bhanu ghosh. 5. jogabrala sen gupta and 6. shri deba brata chakraborty). who are the detenus, and who have been detained by the administrator, the union territory of tripura under rule 30(1) (b) of the defence of india rules. 1902. read with sub-rule (11) of rule 2 of the aforesaid rules made by the central government in exercise of the powers conferred on it by section 3 of the defence of india ordinance (no. 4 of 1902), have applied separately to this court under article 220 of the constitution of india for the issue of a writ in the nature of 'habeas corpus' for their release.2. in all the 6 habeas corpus petitions the questions of law and facts involved are similar and i.....
Judgment:

Rajvi Roop Singh, J.C.

1. The six petitioners (1. Shri Biren Dutta, 2. Shri Benu Sen, 3. Shri Dinesh Deb Barma, 4. Bhanu Ghosh. 5. Jogabrala Sen Gupta and 6. Shri Deba Brata Chakraborty). who are the detenus, and who have been detained by the Administrator, the Union Territory of Tripura under Rule 30(1) (b) of the Defence of India Rules. 1902. read with Sub-rule (11) of Rule 2 of the aforesaid Rules made by the Central Government in exercise of the powers conferred on it by Section 3 of the Defence of India Ordinance (No. 4 of 1902), have applied separately to this Court under Article 220 of the Constitution of India for the issue of a writ in the nature of 'Habeas Corpus' for their release.

2. In all the 6 habeas corpus petitions the questions of law and facts involved are similar and I shall therefore briefly refer to the facts in Petition No. 10 of 1965 for the purposes of dealing with the points raised on behalf of the petitioners.

3. Before dealing with the points which have been raised for decision in these petitions, it is necessary to give a brief resume of facts which gave rise to these petitions, and the issue of the proclamation under Article 359(1) of the Constitution.

4. On October 26. 1962. the President having been satisfied that a grave national emergency exists, whereby the security of India or any part of the territory thereof is threatened by the Chinese aggression, issued a Proclamation declaring the Emergency, under Article 352 of the Constitution, That declaration of emergency was laid before both Houses of Parliament on November 8, 1962, and was approved by the Rajya Sabha on November 13, 1962, and by the Lok Sabha on November 14. 1962. After the Proclamation of Emergency as Parliament was not in session and as the President was satisfied that circumstances existed which rendered it necessary for him to take immediate action for exercise of the powers conferred by Clause (1) of Article 123 of the Constitution he promulgated the Defence of India Ordinance (IV of 1962) on the same date - October 26, 1962. By Section 3 of the Ordinance, the Central Government has been empowered to make rules as appear to be necessary or expedient for securing the defence of India and Civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations or for maintaining supplies and services essential to the life of the community, by notification in the official gazette.

In exercise of those powers, the Central Government promulgated the Defence of India Rules, 1962, by notification in the Official Gazette Extraordinary dated November 5, 1962. The relevant portion of R, 30 is as follows:

The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India's relations with foreign powers, the maintenance of peaceful conditions in any part of India or the efficient conduct of military operations, it is necessary so to do, may make an order:

* * * *

(b) directing that he be detained;

* * * *

During the operation of the Proclamation of Emergency, the President issued, on November 3, 1962. the following Order suspending the right to move any Court for the enforcement of rights conferred by Articles 21 and 22 of the Constitution:

In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any Court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under Clause (1) of Article 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance. 1962 (4 of 1962) or any rule or order made thereunder.

5. In exercise of the power conferred by Rule 30 aforesaid of the Defence of India Rules, the Administrator. Union Territory of Tripura issued an order of detention in respect of the petitioners on December 29, 1964:

Dated, the 29th December, 1964.

ORDER:

Whereas, I am satisfied that Shri Biren Dutta S/o Late Jojneswar Dutta of Joynagar, P. S. Kotwali, Agartala should be detained with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, public safety, the maintenance of public order, India's relation with Foreign powers, the maintenance of peaceful conditions and the maintenance of supplies and services essential to the life of the community in Tripura.

Now, therefore, in exercise of the powers conferred by Rule 30 of the Defence of India Rules, 1962 read with Sub-rule (11) of Rule 2 of the aforesaid Rules and all other powers enabling in that behalf, I hereby direct that the aforesaid person be detained in the Central Jail at Agartala until further orders.

Sd/- S.P. Mukherjee. 29-12-64.

Administrator. Tripura.

Similar Orders were passed in respect of the other petitioners.

6. By a subsequent order dated January 4, 1965. of the Administrator, Tripura. the petitioner and others were transferred from Agartala Central Jail to Hazaribagh Central Jail. The order is in these terms:

Government of Tripura

Home Department

(Police)

No. F. 22(4)-PD/64, Dated Agartala the 4th January 1965. 14th Pausa. 1886.

ORDER:

In exercise of the powers conferred by Sub rule (5) of Rule 30 read with Sub-rule (11) of Rule of the Defence of India Rules. 1962 and all other powers enabling in that behalf and, in modification of order No. F. 22 (4)-PD 64. dated the 29th December, 1964.

I hereby direct that detenu Shri Biren Dutta S/o Late Jojneswar Dutta be detained in the Hazaribagh Central Jail in the State of Bihar and order him to be sent to that Jail for such detention.

The aforesaid place of detention has been determined with the previous consent of the Government of Bihar.

Sd/- S. P. Mukherjee, 4-1-65.

Administrator, Tripura.

Similar orders were issued in respect of other petitioners.

In compliance with this order all the petitioners were transferred from Agartala Central Jail to Hazaribagh Central Jail, where they are still detained.

7. Being aggrieved with this order of their detention the petitioners sent their petitions through the Jailor, Hazaribagh Central Jail to this Court under Article 226 of the Constitution of India with the allegation that they have been improperly and illegally detained. Their contention is that they can be detained under Rule 30(1)(b), but in this case they were not served with any order made under Clause (b) of Sub-rule (1) of Rule 30, therefore, their detention being without any valid order, is illegal and mala fide.

8. They also alleged that they were arrested on 30-12-64 by the order of the administrator, Tripura dated 29-12-64 issued under Rule 30 of the Defence of India Rules, 1962 read with Sub-rule (11) of Rule 2 of the aforesaid Rules. According to this Order they were to be detained in the Central Jail at Agartala until further orders. But by a subsequent order, dated 4-1-65, the Administrator ordered that the petitioners be detained in Hazaribagh Central Jail in the Slate of Bihar. But instead of taking them directly from Agartala to Hazaribagh Central Jail, they were detained from 5-1-65 to 7-1-65 at Dum Dum Central Jail Calcutta. This detention of the petitioners at Dum Dum Central Jail was without any valid order, therefore it tantamounts to contravention of the Defence of India Rules. 1962. and hence the detention is illegal.

9. On receipt of the applications, notice was issued to the Administrator. The Government Advocate appeared on behalf of the respondent and filed affidavits in all cases sworn by Jitendra Kumar Sen Gupta, Superintendent, Home Department. Government of Tripura, The respondent denied the allegations of the petitioners and alleged that the order dated, 29-12-64 is a valid one as it was passed in accordance with law. Although in the Order, Clause (b) of Sub-rule (1) has not been mentioned but the Order read as a whole would clearly show that the detention indicated therein is under Clause (b) of Sub-rule (1) of Rule 30, Defence of India Rules. As regards the allegation of the petitioners about their detention at Dum Dum Central Jail the respondent while denying the allegation stated that in view of the order dated 4-1-65 the petitioners were to be detained at Hazaribagh Central Jail, therefore, arrangements were made for sending them there. But the Officer of the Tripura Administration working in Calcutta informed the Chief Secretary to the Government of Tripura that reservation could not be made available on the 5th January 1965 from Howrah for the detenus and the escort party. Thereupon the Chief Secretary to the Government of Tripura, sent a wireless message to the Inspector General of Police as well as to Inspector General of Prisons, Calcutta on 5-1-65 at 14.15 hours for necessary security arrangement and temporary stoppage of the said detenus at Dum Dum Central Jail or Presidency Central Jail during transit till necessary Railway accommodation is available at Howrah.

The detenus left Agartala on 5-1-65 at 16.45 hours by plane and reached Dum Dum Airport at 18.15 hours. The Railway Accommodation was not available earlier than 7th January, 1965, therefore, they were temporarily lodged in the Dum Dum Central Jail. They left Howrah at 21.05 hours by Delhi Express on the 7th January and reached Patna in the morning of 8th January. They reached Central Jail Hazaribagh at 5 P. M. on 8-1-65. It was also contended that the petitions are not maintainable in view of Article 239(1) of the Constitution and Presidential Order issued thereunder. Lastly, it was averred that the detention of each of the petitioners was valid and they are not entitled to any relief under Article 226 of the Constitution of India.

10. At the time of arguments, the petitioners also raised the following objections, by filing supplementary applications supported by affidavits:

(i) The conditions of detention relating to maintenance, discipline etc. have neither been laid down in the first detention order, nor in the reviewed order, passed after the so-called review as required under Sub-rule (4) of Rule 30 of the Defence of India Rules, 1962.

(11) In the second detention order the place of detention and the conditions of detention have not been mentioned.

(iii) Shri Jitendra Kumar Sen Gupta is not the competent person to swear the affidavit on behalf of the respondent in support of the reply, given by respondent. The Govt. Advocate filed the return supported by affidavit denying these allegations.

11. I shall now deal with the arguments advanced by the learned Counsel for the petitioners.

12. The first contention advanced by the learned Counsel for the petitioners is that the order dated 29-12-64, alleged to have been passed by the administrator under Clause (b) of Sub-rule (1) of Rule 30 of the Defence of India Rules 1962. contains all the conditions laid down in Rule 30(1)(b). By this it should be inferred that the administrator did not apply his mind while passing this order as required by Rule 30.

12a. There appears no merit in this contention. In this case the order is marked as 'Annexure E. A careful reading of the order clearly shows that it is not the verbatim reproduction of Rule 30, but only those conditions have been mentioned which were necessary to mention and the rest were omitted.

13. Besides, nothing has been said on behalf of the petitioners that any one of the reasons given by the detaining authority is bad. If a detaining authority gives 5 reasons for detaining a man without distinguishing between them, and any two or three of the reasons are held to be bad, in that case, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before him. But here the case is different as the petitioners do not say that the reasons given by the administrator are bad.

14. Moreover, before the order under Rule 30 of the Defence of India Rules for the detention of a person can be made, the State Government must be satisfied that such detention was necessary for preventing the person proceeded against from acting in a prejudicial manner. In the instant case from the order, dated 29-12-64, it is clear that the administrator, after being satisfied, passed this order.

15. The learned Counsel for the petitioners has urged that the administrator has not given the grounds of satisfaction which led him to pass this order of detention, therefore it should be treated as an illegal order.

16. This contention is devoid of force. The Court cannot investigate the sufficiency of the material or the reasonableness of the grounds upon which the Governor or the Administrator had been satisfied. But whenever powers of this kind or indeed other special statutory powers are conferred, they must, to the extent to which specific provision has been made in the statute conferring the powers, be executed by the authority and in the manner specified in the statute and in strict conformity with the provisions thereof and the Court can see whether this is done.

17. It was next urged that the Administrator can detain the petitioners only under Rule 30(1) (b), but in this case they were not served with an order made under Clause (b) of Sub-rule (1) of Rule 30. therefore, their detention only under Rule 30 is illegal and hence they should be set at liberty. It was also alleged that in this order the administrator has not mentioned Clause (b) of Sub-rule (1) of Rule 30, therefore the order is not in terms of the rule. The learned lawyer for petitioners pointed out that if a man can be deprived of his liberty under a rule by simple process of the making of a certain order, he can only be so deprived if the order is in terms of the rule. Strict compliance with the letter of the rule is the essence of the matter. In this case the order has not been passed in strict compliance of the rule, therefore, it is a bad order and hence the petitioners be released. In support of his contention he placed reliance on the case Dr. Ram Manohar Lohia v. State of Bihar : 1966CriLJ608 ,

18. I have given my most careful and anxious consideration to these contentions and am clearly of the opinion that there is no force in them. This is a fact that in the order dated 29-12-64, (Annexure E) Sub-rule (1) Clause (b) has not been mentioned, but by reading the order as a whole it is absolutely clear that the detention indicated therein is under Clause (b) of Sub-rule (1) of Rule 30, Defence of India Rules. Besides, under Rule 30, there is no other clause, except Clause (b) of Sub-rule (1) where in the expression that 'he be detained is used.' In these circumstances the mere omission of Clause (1)(b) in the order does not make any difference. What is required by this rule is that the order must be correct in substance. In this case as regards the substance the order is correct. Moreover, an order under Rule 30 of the Defence of India Rules can be called invalid only if on a perusal of the order it becomes clear that the authority or officer making the order did not apply its or his mind as required by Rule 30. But this is not so in this case. On this point I may refer the case Mohan Chowdhary v. Chief Commissioner, Union Territory of Tripura : 1964CriLJ132 . In this case a similar order was passed by this very administrator and that case went to the Supreme Court and there too that order was upheld. In the same way this order does not suffer from any infirmity hence the contention of the petitioners is not tenable.

19. As regards the case of Dr. Lohia it can be said without any hesitation that it is not at all applicable to this case. In that case the District Magistrate, Patna, passed the order to prevent him from acting in any manner prejudicial to the public safety and the maintenance of law and order. When the case went to Supreme Court the question arose whether an order could be made legally under Rule 30 for preventing disturbance of Law and Order. In this case Sarkar J while delivering the judgment observed that a man can be deprived of his liberty if the order is passed in terms of the rule, but in this case the detention of Dr. Lohia was not justified as it was not under the Rules, therefore, he is entitled to be set at liberty.

20. The learned Counsel for the petitioners contended that the petitioners were detained at the Central Jails Agartala and Hazaribagh by the order of the Administrator. But their detention from 5-1-65 to 7-1-65 at the Central Jail Dum Dum was without any order from any body, therefore, it was an illegal detention and hence the subsequent detention of the petitioners by any other order cannot be justified. It was further pointed out that the Administrator was the right person to order for the detention of the petitioners at Dum Dum Central Jail, and not the Chief Secretary Tripura Govt. The steps taken by the Chief Secretary for the detention of the petitioners at the Central Jail Dum Dum were illegal.

20a. After having given my due consideration to the argument advanced by the lawyer for the petitioners and the reply filed by the respondent, I cannot persuade myself to subscribe to the view of the counsel for the petitioners, but on the contrary I am clearly of the opinion that there is no force in it. In this case this is an admitted fact that there was no question for detaining the petitioners at the Central Jail Dum Dum. If there had been such an intention in that case there would have been an order to that effect as there are two other orders about their detention at Central Jail Agartala and the Central Jail Hazaribagh. In this case they were to be sent from Aeartala to Hazaribagh via Calcutta. But no Railway accommodation was available earlier than 7-1-1965, therefore, under these practical difficulties and compelling circumstances they had to stay temporarily at Central Jail Dum Dum. In these circumstances no order from the Administrator was required for their temporary stay during transit at Dum Dum Central Jail from 5-1-65 to 7-1-65. In this case under the compelling circumstances what was required to be done was done by the Chief Secretary. In view of these facts their temporary stay at Dum Dum Central Jail could not be called illegal.

21. The next contention advanced on behalf of the petitioners is that these orders were mala fide inasmuch as they were passed in order to keep Shri Biren Dutta and other petitioners who are the members of the Left Communist Party behind the bars as they were strong critic of the Government Policy. This allegation has been denied in the affidavit filed on behalf of the respondent. But apart from this denial I fail to see how the orders passed on 29th December, 1964 can be said to be mala fide if the administrator was satisfied that with a view to preventing the petitioners from acting in a manner prejudicial to the Defence of India. Civil Defence. Public safety and Public order, it was necessary to detain them. It has been clearly stated on behalf of the respondent that the orders were passed on being satisfied on the materials placed before him. I, therefore, reject the contention that the orders passed were mala fide.

22. The learned lawyer for the petitioners contended that the conditions of detention relating to maintenance. discipline etc have neither been laid down in the first detention order nor in the reviewed order, passed after the so-called review, as required under Sub-rule (4) of Rule 30 of the Defence of India Rules. 1962. By this it should be taken that the Administrator did not apply his mind at all while passing these orders. It was further pointed out that no rules under Sub-rule (4) of Rule 30 of the Defence of India Rules. 1962 were framed by the Administrator, therefore, the conditions of detention relating to maintenance, discipline etc. were not laid down in the detention order.

23. After carefully considering the contention of the petitioners and the reply given by the respondent I am of the opinion that it is without substance. The counsel for the petitioners failed to show me as to why the detention order under Rule 30 or the order of review under Rule 30-A (3) and (8) should contain the conditions of detention relating to maintenance, discipline etc. A careful study of the rules show that the detention order is independent of Rule 30(4) of the Defence of India Rules. The, conditions as to maintenance, discipline are to be determined by the State Government from time to time As regards Tripura the Administrator of the Union Territory of Tripura, in; exercise of the powers conferred by Sub-r. (4) of Rule 30 of the Defence of India Rules, 1962. made the order determining the place and conditions of detention of persons ordered to be detained under Clause (b) of Sub-rule (1) of Rule 30 of the said Rules. This order is called the Tripura Detenus Order, 1964. It was passed on 30-12-64 as is evident by the file placed before this Court by the Government Advocate. In view of these facts I hold that it is not at all required that these conditions would form part of the detention order or the order of review.

24. The other contention of the learned lawyer for the petitioners is that in the second detention order neither the place of detention, nor the conditions of detention are mentioned, therefore this order is illegal.

25. On the perusal of the facts of the case I am of the opinion that there is no force in this contention even on the merits. In this case this is a fact that the petitioners were sent to the Hazaribagh Central Jail with the previous consent of the Government of Bihar, by an order dated 4th January, 1965 of the Administrator, Tripura and the petitioners have been under detention there since 8-1-65. The review orders were passed by the Administrator on 25-6-65 and were communicated to the petitioners there, on 28-6-65. The order dated 4-1-65 still subsists as it subsisted on 25-6-65, therefore, it was not at all required that the place of detention should have been repeated in the order of review dated 25-6-65. As regards the question of mentioning the conditions of detention in the review order it is suffice to say as discussed above that the detention order is independent of Rule 30(4) of the Defence of India Rules,

26. The last contention of the learned lawyer of the petitioners is that Jitendra Kumar Sen Gupta is not the person who passed and reviewed the orders, therefore, he is not the competent person to swear the affidavit on behalf of the respondent in support of the reply given by him, therefore, the reply should not be taken into consideration, but it should be rejected outright. It was further urged that in this case the petitioners have alleged that the orders of detention passed, by the Administrator are mala fide, therefore, Administrator was the competent person to swear the affidavit to refute the charge of mala fide. It was also alleged that there is no affidavit by the Administrator who was the competent authority nor is there any explanation why he did not swear any affidavit. This Court should deprecate the tendency developed among the Govt. Officials to send their clerks to swear affidavits in regard to facts which are within their own knowledge. It was also alleged that this practice is contrary to law and improper, and smells of discourtesy to this Court. In support of his argument he placed reliance on R. P. Kapoor v. Pratap Singh Kairon : [1961]2SCR143 . and Moinuddin v. Divisional Mechanical Engineer. N. R. Rly : AIR1959All795 .

27. In order to meet this contention the Government Advocate vehemently urged that in any suit or other proceedings by or against the Government, the plaint or written statement is signed by such person as the Government may by general or special order appoint in that behalf and it is verified by the person whom the Government appoints or who is acquainted with the facts of the case. As regards this case. Jitendra Kumar Sen Gupta, who is in charge of the section and is well conversant with the facts and record of the case, was appointed in charge of the case, therefore, he was the right person to file the Affidavit on behalf of the respondent. In support of his argument he cited Shiv Dutt v. Stale of Himachal Pradesh , wherein it was observed that responsible officer of the Government acquainted with the facts of the case should be entrusted with the task of signing and verifying the pleadings on behalf of the Government,

28. I have given my most careful and anxious consideration to it, and I have fully pondered over the arguments advanced on both sides, but in view of the facts of the case I cannot persuade myself to concur with the contention raised by the learned lawyer for the petitioners.

29. There is no hard and fast rule as to. who should verify the facts by swearing an affidavit. But the verification should invariably be modelled on the lines of order 19, R. 3, of the C. P. C. whether the Code applies, in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. It is also not necessary in every case to call the Minister incharge or the Administrator. If the Secretary, or any other person; has the requisite means of knowledge and his affidavit is believed, that will be enough to prove that the order was validly made by the Government of the State.

30. In the instant case, as a matter of fact, either the Administrator or the person well conversant with the facts of the case should have sworn the affidavits. In this case, Jitendra Kumar Sen Gupta, being well conversant with the facts of the case sworn the affidavits, therefore it should be taken that they have been sworn by the right person. In the presence of these facts, the absence of the affidavit of the Administrator does not make any difference. If there had been an allegation by the petitioners that the affidavit sworn by Shri Jitendra Kumar Sen Gupta were spurious in that case it would have become imperative for the Administrator to swear an affidavit to prove these facts, but it is not so in this case. The allegations of mala fide alleged against the Administrator by the petitioners have been found palpably spurious; therefore it was not necessary for the Administrator to swear the affidavit. Besides in this case the petitioners . have not challenged the review orders, but they have challenged certain irregularities in the detention order; therefore, any person well conversant with the record can swear the affidavit. Shri Jitendra Kumar Sen Gupta is well conversant with this record, therefore he has sworn the affidavits. The cases cited by the learned lawyer for the petitioners are not applicable to this case as in these cases the facts were different.

In the case of : [1961]2SCR143 there were serious personal allegations against Kairon, therefore, the Court observed that the Chief Minister owed a duty to the Supreme Court to file an affidavit stating the correct position regarding the allegations so far as he remembered it and not to leave the refutation of the allegations to Secretaries and other Officers who could only speak from the record. Similarly in the case of : AIR1959All795 the counter affidavit was sworn by Dwrka Nath Bhatia Sub-Head, Divisional Superintendent's Office, Northern Railway. In this case the question arose whether the explanation to the show cause notice filed by the petitioner was considered by the Divisional Mechanical Engineer 1 Allahabad. After a thorough examination of the record it was found that there was nothing on the record to show that the petitioner's explanation was considered. Thereupon S. S. Dhavan J. re-marked that the tendency among Government Officials to send their clerks or paisokars to swear affidavits in regard to facts which are within their own knowledge is to be deprecated.

31. No other point was raised on behalf of the petitioners.

32. In the result, I find that the petitioners fare legally and properly detained and are therefore not entitled to relief under Article 226 of She Constitution of India. The petitions fail and care dismissed.

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