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In Re: Maganlal Jivabhai Patel - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 951 of 1950
Judge
Reported inAIR1951Bom33; (1951)53BOMLR127; ILR1951Bom546
ActsPreventive Detention Act, 1950- Sections 3(1), 3(2) and 7; Constitution of India - Article 22(5), 22(6)and 246; ;Bombay Industrial Relations Act, 1946 - Sections 97; Press (Emergency Powers) Act, 1931
AppellantIn Re: Maganlal Jivabhai Patel
Advocates:K.T. Sule and ;H.S. Bhat, Advs.;H.M. Choksi, Govt. Pleader
DispositionApplication dismissed
Excerpt:
preventive detention act (iv of 1950), sections 3, 7-constitution of india, article 22(5), (6)-grounds of detention furnished to detenue-whether sufficient to describe grounds in terms of section 3(1)(a) and (b)-whether detenue can call upon detaining authority to produce evidence upon which action taken-authority making order of detention whether means individual who makes it-determination of question of legality of strike-whether open to ordinary courts or detaining authority to decide such question-bombay industrial relations act, 1946(xi of 1947), section 78.-conflict between a statute and constitution.; the grounds which have got to be furnished to the detenue under the preventive detention act, 1950, must be not only the words of the section under which action was taken, but must.....bavdekar, j. 1. this is an appln. under section 491, criminal p. c. & article 226 of the constitution by a person, who has been detained by an order made by the dist. mag. ahmedabad, on 29-3-1950. the order stated that the dist. mag. ahmedabad, was of the opinion that, in order to prevent the detenu from acting in a manner prejudicial to the security of the state of bombay & the maintenance of public order, it was necessary to make an order detaining the said detenu. under the preventive detention act. 1950, when a detention order is made, grounds are to be furnished to the detenu as soon as may be, & on 19-6-1950, the dist. mag., ahmedabad, furnished to the detenu the grounds of the detention, which are as follows:'that you are an active worker of the communist party & in furtherance of.....
Judgment:

Bavdekar, J.

1. This is an appln. under Section 491, Criminal P. C. & Article 226 of the Constitution by a person, who has been detained by an order made by the Dist. Mag. Ahmedabad, on 29-3-1950. The order stated that the Dist. Mag. Ahmedabad, was of the opinion that, in order to prevent the detenu from acting in a manner prejudicial to the security of the State of Bombay & the maintenance of public order, it was necessary to make an order detaining the said detenu. Under the Preventive Detention Act. 1950, when a detention order is made, grounds are to be furnished to the detenu as soon as may be, & on 19-6-1950, the Dist. Mag., Ahmedabad, furnished to the detenu the grounds of the detention, which are as follows:

'That you are an active worker of the Communist Party & in furtherance of the aims of the organisation you have been secretly & actively engaged in organising dangerous & violent agitation so as tocause widespread disturbance of peace & disorder in the City & other parts of the District;that you were up to the time of your arrest wilfully & actively inciting the labour classes & particularly the textile labourers in Ahmedabad City to resort to illegal strikes & violence for achieving their demands rather than through, the machinery set up by the Administration with the ulterior object of bringing about disorder in the City;that you have been secretly publishing unauthorised objectionable news sheets exhorting the public, especially the labouring classes to start an open & violent revolt to overthrow Govt.'

Then, the Dist. Mag. went on to say that be was fully convinced that, if left at large, the detenu was likely to act in a manner prejudicial to the security of the State & maintenance of public order in the City & District.

2. The detenu has now made an appln. to this Ct. for his being set at liberty, & the first point which has been made on his behalf is that the order in this case watt passed by one Dist. Mag., namely, Mr. Damry, at the time when the order was actually served upon the petnr. Mr. Damry had left charge & another Dist. Mag., namely, Mr. Ghatge, was the Dist. Mag. of Ahmedabad. Mr. Ghatge does not seem to have applied his mind to the question as to whether the detenu should or should not be detained; but without his applying his mind to the question, the order which was passed by Mr. Damry was executed, & the detenu was arrested in pursuance of the order. It is said that it is not permissible for any detaining authority to act upon an order which has been made by it a long time before. Circumstances may change, & if an order which has been made in different circumstances is to be served at a much later date, the detaining authority must review the case afresh & must come to the conclusion as to whether the order should or should not be executed, and if that is not done, then, there being no such satisfaction as is necessary that the detaining authority should have under the Preventive Detention Act, the order is bad, & his detention consequently is bad also.

3. Now, in our view, in the first instance, an order which is issued by the Dist. Mag. takes effect upon the date of its issue. It is true that, if the Dist. Mag. were to sign an order & keep it in his pocket, the order cannot be regarded even as issued; and if the order is never issued by the person who has made it, a subsequent Dist. Mag. cannot take action upon an order which has never been issued by his predecessor. But there are no reasons in this case for saying that, even if Mr. Damry made the order, the order, as a matter of fact, was never issued. As a matter of fact, the contention which has been made on behalf of thedetenu itself shows that Mr. Ghatge not having applied his mind, the detenu has been arrested in consequence of an order made & issued by Mr. Damry long before. Had the order been in Mr. Damry's pocket, it is obvious that it could not have resulted in the detention of the detenu. The order must, therefore, have been issued, & we think in all probability in this case that the order must have been issued, as Mr. Ghatge's affidavit does not show that he ever applied his mind to it, before Mr. Ghatge took charge of the post of the Dist. Mag. of Ahmedabad. In that case, the only question is as to whether upon such an order an arrest could legally be made. We can quite understand that there may be cases in which a detention order may even be made & issued, & owing to lapse of time circumstances may have so changed that it would not be proper for a Dist. Mag. to take action upon that order. Say, for example, if an order is made now saying that it is necessary to detain a particular person under the order, & that order has not been cancelled & has been sent for execution to the police, with whom it remains, the Ct. would be very slow, after the lapse of a very long time, say, for example, 10 years, to say that the detention was a valid detention. But whenever it is a question of time having elapsed after the making of an order & before its service, it is after all a relative question as to whether time which lapsed is too long or it is short enough. The learned Govt. Pleader has pointed out & pointed out rightly that when an order is made under the Preventive Detention Act, the order continues to be in force until it is cancelled, & as a matter of fact even apart from any specific section of the Preventive Detention Act, if an order is lawfully made, it must remain in force until it is revoked by a proper authority. But we do not think that has gob anything to do with the question before us. We think that, inasmuch as this order of the Dist. Mag. was sent out by him for execution & it had not been revoked, it is proper to come to the conclusion that it was the view of the Dist. Mag., who made the order, till he remained in office, that that order should be executed. It is true that it is impossible to say what Mr. Damry might or might not have done in case he had remained in office. The learned Govt. Pleader, who appears on behalf of the State, says that in this case he would argue that Mr. Ghatge had applied his mind to the question of the detenu's detention ; but Mr. Ghatge's affidavit does not satisfy us that he, as a matter of fact, did apply his mind to the question. What he says is that the grounds upon which the detentionwas made were such that he would have been satisfied that it was necessary to detain the detenu in respect of them. We think that this affidavit leaves no doubt that Mr. Ghatge did not apply his mind to the question as to whether it was or it was not necessary to detain the detenu. But the time which lapsed between the order of Mr. Damry & the execution of the order by the arrest of the detenu was less than three months. As I have said already, we are of the view that Mr. Damry was of the view, till he left charge, that the order should be executed, & we do not think that any such interval has passed after Mr. Damry left, charge & the arrest of the detenu that looking to that interval alone we would be prepared to say that it was wrong to execute the order which was issued by Mr. Damry. It has got to be remembered that the Dist. Mags., who are usually detaining authorities, are liable to be transferred; it cannot be contended that, if the Dist. Mag. passed an order & his transfer took place within a few days, the order could not be executed, & inasmuch as the question is only one of the relative interval of time in this case, we are of the view that the order was served within a reasonable time after Mr. Damry left charge. In that case, there was no defect in that Mr. Ghatge who succeeded him did not apply his mind to the question of the detention of the detenu.

4. It is said, however, in the second instance, that even assuming that the order could be executed at the time when the detenu was arrested, the order was bad, because it is based upon vague grounds. Now, the grounds which were furnished to the detenu may be said to be three. The first part of the ground, namely, that he is an active worker of the Communist Party, we do not regard as a separate ground because the words which follow show that the act of the detenu was supposed to be in furtherance of the aims of an organisation, namely, the Communist Party If it was not stated that the detenu was an active member of the Communist Party, the question which would naturally arise would be, why he should act in fun heranoe of the aims of the organisation which were supposed to be furthered by his act. The first ground, therefore, is that in furtherance of the aims of the Communist Party the detenu was secretly & actively engaged in organising dangerous & violent agitation so as to cause widespread disturbance of peace & disorder in the City & other parts of the District. Now, in our view, this ground is vague. The learned Govt. Pleader, who appears on behalf of the State, Says, however, that it does not matter if the ground which was furnishedto the detenu was vague, because all that the Preventive Detention Act requires the detaining authority to do is to furnish him grounds in the nature of the bare words of the section of the Act, under which action has been taken. It has got to be remembered that the Preventive Detention Act enables a person to be detained in several circumstances. The Dist. Mag. in this case has chosen to take action against the detenu under those words of the Act which have reference to preventing the detenu from acting in a manner prejudicial to the security of the State of Bombay & the maintenance of public order. He could have taken action against the detenu, provided, of course, he was satisfied in a proper manner under other portions of the section of the Act which enable the Dist. Mag. to take action. The contention which has been made on behalf of the State, therefore, boils down to this that, even though there is an obligation upon the detaining authority to furnish to the detenu grounds, the grounds which have got to be disclosed need not mention anything more than what had already been embodied in the order which the Dist. Mag, passed on 29 8-1950. & in support of this contention reference has been made to the case of Greens v. Secretary of State for Home Affairs (1942) A. G. 284: 111 L. J. K. B. 24)& to the case of In re Jayantilal Nathubhai 51 Bom. L. R. 658 A. I. R. 1949 Bom. 319: 61 Cri. L. J. 184 . Now, it is quite true that I bad to deal with this question of the meaning of the word 'grounds' in Jayantilal's case 51 Bom. L. R. 653: A. I. R. 1949 Bom. 819: 51 Cri. L J. 184 . & I had occasion there to point out that, when the word 'grounds' was used by the Legislature in England in the Defence of the Realm Act & the Regulations made thereunder, the word 'grounds' was supposed to refer to the words of the section under which action was taken; but that was obviously with reference to the language of the Act in which the word 'grounds' was used. It is the cardinal principle of the construction of statutes that the meaning of a word is liable to be restricted because of the context in which the word occurs & if under the English Act there was scope for saying that grounds meant the language of the section under which the order was passed, that was because the Act was worded 'Grounds & Particulars.' It is on this ground that in Jayantilal's case 51 Bom L. R. 653: A. I. R 1949 Bom. 819 : 51 Cri. L. J. 184 , I made a distinction between the: English case & the case of Jayantilal 51 Bom. L. R. 653 A. I. R. 1949 Bom 319 51 Cri. L.J. 184 which was under the Public Security Measures Act, & in which the words used were'grounds & other particulars' showing that the grounds would have to mention some particulars. Those illustrations ought to be sufficient to show that the meaning of a word would, to some extent, be controlled by the context in which it appears, & in this case we are concerned with two enactments, one is the Constitution, & the other is the Preventive Detention Act. So far as the Preventive Detention Act is concerned, in one sense, its language is not determinative of the word 'grounds,' because assuming for the purpose of argument that when the Preventive Detention Act said that grounds should be given, it uses words qualifying 'ground' which would enable the detaining authority to omit certain facts, that, could not have any effect against the words of the Constitution, which makes it obligatory upon the detaining authority to mention the grounds in all cases. It is obvious that if there is a conflict between an Act of a Legislature, which is enacted by it under a particular power given to it by Constitution, & the Constitution itself, then the words of the Constitution must prevail. It in true that the Constitution uses the word 'grounds,' & it is said that this word was used by the Constituent Assembly which could not have been ignorant of the previous Public Security Acts which were in this State as well as in other States. That is perfectly true ; but in the first instance, what we have got to see is the language of the Constitution itself, and when we see Article 22(6) the first thing which is quite clear is that we cannot interpret the word 'grounds' to mean the bare words of the section without saying that Article 22(6) of the Constitution was really unnecessary. If Article 22(5) enabled the detaining authority to communicate to the detenu only those words of the section under which in that particular case the detaining authority had taken action, then, obviously there was no reason for providing by Article 22(6) that nothing in Article 22(5) shall require the detaining authority to disclose facts which it was in the opinion of the detaining authority not in the interest of the public to disclose.

5. In our view, therefore, the grounds which have got to be furnished to the detenu must be not only the words of the section under which action was taken, but must disclose to him the facts upon which action has been taken, though this would be subject to the provision of Article 22(6), under which it is not necessary for the detaining authority to disclose such facts as, in its opinion, would be against the public interest to disclose. We are with respect in agreement on this ground with the view which has been followed in SushilaMadiman v. Commr. of Police, : AIR1951Bom252 , but we do not think that, in order to arrive at this conclusion, it is necessary to have recourse to the language of Article 22(5), which says that the detaining authority has got, in the first instance, to furnish grounds to the detenu, and, in the second instance, to give him reasonable opportunity to make his defence. It is contended on behalf of the State that the two things which the detaining authority hap to do have nothing to do with each other, and in the interpretation of the word 'grounds' no consideration should be imported from the other thing which the detaining authority must do, and that is, that it must give reasonable opportunity to the detenu to make a representation. We do not wish to go into this question because, we feel that, even if the two things are entirely separated, and the meaning of the one word used in describing one thing cannot be controlled by the language used in describing the other thing, the argument which is based upon Article 22(6) must prevail.

6. There is a further question which has been raised before us as to whether, as a matter of fact, even assuming that the detaining authority is obliged to disclose the conclusions of fact upon which its order is based, there is any discretion vested in it to omit any of the facts which it may consider are unnecessary. Now, as has been pointed out in Sushila Madiman's case 52 Bom. L. R. 794 : A. I. R. 1951 Bom. 262 the Constitution does not enable the detaining authority to mention to the detenu only such facts as are in its opinion sufficient to enable him to make a representation. It has been argued before us that the effect of this is, as was suggested on behalf of the State, to make it necessary to the detaining authority only to mention the words of the section of the Preventive Detention Act under which action was taken. That we have already repelled. The second argument made before us is different. It is to the effect that, even though the words which enable the detaining authority to omit such facts as were not, in the opinion of the detaining authority, necessary for the detenu to know in order to make his representation, are deleted, the deletion must not be taken as equivalent to a substitution of the words owing to which it would be enough for the detaining authority to disclose such facts as are sufficient in the opinion of the Court to enable the detenu to make his defence, and in our view that contention must be accepted. It is true that or e of the reasons which has been given in Sushila Madiman's case, : AIR1951Bom252 has been that the grounds are furnished to the detenu in order that he should be enabled to make a defence, and it may perhaps be deducible from that argument, if that was the only argument, why we would hold that the grounds must disclose facts that it was not necessary to disclose to the detenu facts which were not in the opinion of the Court necessary for him to know in order to make his defence. But in our view, there must be a disclosure of facts which can be deduced from Article 22(5) without having reference to any argument that the grounds have got to be furnished to the detenu in order to enable him to make his defence. But even if it was necessary to go to these words to some extent in order to arrive at the result, what must be disclosed to the detenu are the conclusions of facts of the detaining authority. In our view, there is no reason why a further limitation should be placed upon the facts which must be disclosed in the shape of the facts being sufficient in the opinion of the Ct. to enable the detenu to make a defence. We are not suggesting that, when the grounds are furnished & facts are mentioned, the Ct. will start seeing if the 't's of the grounds are dashed & 'i's are dotted ; but the main object of giving the grounds to the detenu is to enable the detenu to know upon what conclusions of fact action was taken against him. In our view, every fact ought to be disclosed to him, which is not protected by Article 22(6). To illustrate by giving an example, if action is taken against a detenu on the ground that he has been guilty of two political murders, unless again it is not in the interest of public to disclose the facts concerned, we fail to understand how a detenu would have sufficient opportunity to make a representation, if he simply was told that on a particular date & at a particular time he killed A, & on another date & time he killed B. The detaining authority is entitled to come to its own conclusion as to whether the detenu killed A or B or not, & whether these are political murders of which the object was to spread disorder in the country or not ; but if the detenu is to have opportunity to make a defence, supposing the case against him was based upon an allegation that he' had sent a threatening letter to A, that subsequently A was murdered, that he was murdered with a hatchet, & that the detenu was seen at about the time & the place of the murder by some persons going about with a blood-stained hatchet in his hand, we do not think that the detenu can make a proper representation, unless he was told all the facts, namely, that he had sent a threatening letter, that subsequently when the murder was committed thedetaining authority had, as a matter of fact, found that he was in the vicinity of the place with a blood-stained hatchet in his hand. We are not suggesting that the detaining authority would be entitled to take action against the detenu only on these facts but he is entitled to come to his own conclusion upon the facts as to whether a murder has, as a matter of fact, been committed by the detenu or not ; but the mere fact that the detenu committed murder of x at a particular time & place will not give the detenu sufficient opportunity to make any worthwhile representation, & therefore whenever action is taken upon a detenu upon certain conclusion of fact, all the facts ought to be disclosed upon which action has been taken against him, provided, of course, the public interest did not require that these facts should be kept away from the detenu.

7. Looking at the grounds which have been furnished to the detenu in the light of these remarks, it appears to us obvious at the outset that ground No. 1 is vague ; it does not tell the detenu what were the activities in which he ever indulged; what it says is that he has been secretly & actively engaged in organising dangerous & violent agitation so as to cause widespread disturbance of peace & disorder in the city & other parts of the District. Now, we can understand the argument that it may not be possible in a particular case to disclose to a detenu certain facts. We have, as a matter of fact, in this case an affidavit filed in generalwords to the effect that it was considered not in the public interest to disclose to the detenu any facts other than those which are mentioned in the grounds against him. Now, if what the detenu was doing was organising dangerous & violent agitation, we could understand that the detenu could not, perhaps, in the interests of public, be told what was the nature of his activity of organising. But if it was said that what he was organising was a certain dangerous & violent agitation, we fail to understand why it has not been possible to tell the detenu that the dangerous & violent agitation which he was organising was a particular one. The organisation would naturally be secret, & it may be against the public interest to tell the detenu that Govt. had come to know the nature of the organisation which he was effecting. But dangerous & violent agitations are of certain kinds; people do embark upon themfrom to time, & merely disclosing the nature of the agitation which is considered dangerous & violent cannot possibly affect the interest of the State.

8. But the view which this Ct. has taken is that, even though one of the grounds which hasbeen given to the detenu is vague, it would besufficient if the other grounds which are givento the detenu give him sufficient particulars, &we; find that the second & the third groundswhich have been given to the detenu in thiscase give to him sufficient particulars of thefacts upon which action has been taken against him. The second ground is to this effect;

'That you were upto the time of your arrest wilfully & natively inciting the labour classes & particularly the textile labourers in Ahmedabad City to resortto illegal strikes & violence for achieving their demands rather than through the machinery set up bythe Administration with the ulterior object of bringing about disorder in the City.'

It is contended on behalf of the detenu that,assuming that the strike which the detenu was inciting was an illegal strike, there was no reason why he should not have been told whatwas the strike which he was inciting & which was considered by the detaining authority to be illegal. Now, such an argument could possibly be valid where the act complained of is incitement to go on a strike & the grounds were given a sufficiently long time after the incitement, the strike not having taken place in the meantime. In this case the grounds wore given on 19-6-1950, & inasmuch as the order which was passed against the detenu was on 29-3-1950, we are not prepared to say that so much time had elapsed after the alleged instigation that strike not having taken place in the interval there would have been, no damage to public interest in not disclosing to the detenu the nature of the strike which he was instigating. We take it that inasmuch as action has been taken against the detenu he is an important person. We assume, for the purpose of argument, that he instigated certain strikes which the detaining authority same to the conclusion were illegal. Now, the instigation might have been only to a small section of the labour classes & the textile labourers; it might not have reached all the labour classes. If the grounds were furnished to the detenu, the grounds would necessarily be mentioned by him when he makes an appln. for example, to this Ct., the grounds might get into the papers, & in case otherpeople came to know that it was the desire of the detenu to enter upon particular strikes, it may happen to incite them to strikes. It might have been considered, therefore, against the public interest to disclose the strikes which the detenu was inciting, because the effect of the disclosure might be that ultimately if other people came to know that the detenu had wanted to incite those strikes, they might go on strike themselves.

9. So far as the third ground is concerned,we do not think that really anything can besaid against it. It is specifically to the effectthat

'You have been secretly publishing unauthorised objectionable news sheets exhorting the public, especially the labouring classes to start an open & violent revolt to overthrow Govt. .

We find that all the necessary particulars have been given in this case. It has been contended before us that, when the detenu made his appln. he denied that he had published any unauthorised objectionable news sheets, & he had thrown out a challenge to the State to produce those news sheets if they had them; but no news sheets have been produced. In our view, once it is conceded, as it must be conceded, that it is the satisfaction, of the detaining authority which has to result in the detention of the detenu, provided, of course, it is not mala fide & it is not based upon anything which is arbitrary or capricious, it would not be open to the detenu to call in effect upon the detaining authority to produce before the Ct. evidence upon which action is taken, & merely because the detaining authority has not produced the pamphlets, we are not prepared to say that, its satisfaction ground has been given mala fide.

10. In our view, therefore, the second & third grounds in this case disclosed to the detenu sufficient particulars upon which action was taken against him to enable him to make a representation to the State.

11. It is said, however, that the grounds are bad for other reasons, & the first reason made is that the second ground in this case mentions that the detenu was inciting illegal strikes. It is contended on behalf of the detenu that under Section 78, Bombay Industrial Relations Act, 1946, a Labour Ct. has been given power to decide whether a strike, lock-out, closure or stoppage is illegal under the Act. The power to declare that a strike is illegal is also given to the Industrial Ct. It is said that in case an employer wants to take action against an employee on the ground that he had joined ail illegal strike, he cannot take such action, unless, in the first instance, the Industrial Ct. had declared the strike to be illegal. The learned advocate, who appears on behalf of the detenu, points out next that in case the Dist. Mag. wants to prosecute a labourer who had joined a strike, or a person who has incited a strike under the provisions of Section 108 or Section 104, Bombay Industrial Relations Act, 1946, action can be taken only before a Labour Ct., which is empowered under Section 78(1)(B) to try offences punishable under the Act, & the contention which has been advanced before us is that in case the Bombay Industrial Relations Act, 1946,provides that penal action against the person who had joined an illegal strike or a person who has incited an illegal strike can be taken up only before a particular Ct., namely, the Labour Ct. or after declaration by another Ct., namely the Industrial Ct., that the strike is illegal, the detaining authority has no power to determine as to whether the strike which a particular person who has been detained has incited was a legal or an illegal strike. The learned advocate, who appears on behalf of the detenu, says that it is a matter of common ex denenue that where one or the other of the parties to industrial disputes puts forward the view that a strike is legal or illegal, when the matter is taken to a Ct., it is found that the opinions of the parties are worthier; employers Sometimes maintain that the strike is illegal; but the Industrial Ct. finds it to be legal; sometimes employees say that the strike is legal but the Industrialist finds it is illegal. It is said that consequently the matter of deciding whether a strike is or is not legal is a matter of very great difficulty; parties must be heard in regard to their contentions as to whether the strike is legal or illegal, & the Bombay Industrial Relations Act contemplates that, because of these difficulties, the question as to whether the strike is legal or illegal for the purpose of enforcing penalties laid down by the Act can be determined only by the Labour Ct. or the Industrial Ct. It could not have been intended that the detention which entails similarly serious consequence upon the person affected could be made by a person like the detaining authority without any evidence before him & without hearing any arguments addressed to him.

12. Now, in our view, it is not a logical result of the provisions made in the Bombay Industrial Relations Act, 1946, that the detaining authority has no power to determine whether a strike which is being incited by the person whom it is proposed to detain is or is not an illegal strike. We do appreciate that the question as to whether a strike is legal or not legal is a matter of some considerable difficulty in many cases: but we do not understand why the thing should be a matter of difficulty is all cases. Everything will depend upon whether the facts upon which the strike is to be declared legal or illegal are admitted or not. Determination of the facts would undoubtedly be a matter of considerable difficulty; but even if we assume that that is so, there is no reason why we should hold that the detaining authority has no power to determine that a particular strike which is being instigated is an illegal one. The detainingauthority has got power to determine both questions of fact & questions of law. To refer to an example which has already been given above, if action was proposed to be taken against a detenu on the ground that he has really committed political murders with a view to spreading disorder in the State, the detaining authority is empowered to decide whether the detenu has or has not committed; the murders, & we fail to understand that the determination of the question as to whether the strike is or is not legal is more difficult than the determination of the question as to whether a particular person has or has not committed a particular murder. We do not intend to suggest that in all cases murder is a question the determination of which is more difficult than the determination of the question whether the strike is legal or illegal. We can quite understand that some murder cases are very simple ones; similarly the determination of the question as to whether some strikes are legal or illegal may be easy; everything must depend upon the facts which are in dispute & we think that, just as the facts may be very complicated in the case of an illegal strike, they may be equally complicated in the case of a murder, & the CT. cannot say that, because the nature of the question to be determined is a difficult one, therefore the detaining authority has got no power to determine it. Nor do I think that there is anything in the language of the Bombay Industrial Relations Act which would persuade us to hold that the result of the Bombay Industrial Relations Act, 1946 is that the detaining authority has no power to determine as to whether the strike which is being instigated is legal or not. It is true that detention is a very serious matter; the consequences are sometimes more disastrous to the detenu than the consequences of an actual conviction; but the Legislature has contemplated that in certain circumstances action which results in those disastrous consequences should be taken. It is desirable that, whenever such an action is taken, provision should be made that there should he safeguards. What these safeguards should be is a matter of opinion; once these safeguards are prescribed, it is also necessary that the Cts. should be vigilant in seeing that these safeguards are observed; but once it is found that the Legislature intended that action should be taken upon the detaining authority being satisfied of certain things I fail to understand why the provisions of the Act which has got to do with industrial relations & which provides that certain Cts. should have power to determine as to whether a strike is illegal or not should affect the question ofthe power of the detaining authority to determine for himself that the strike is legal or illegal. The question whether a strike is legal or illegal is not restricted to proceedings before the Labour Ct. or the Industrial Ct. Undoubtedly, it is the Industrial Ct., which has got the power to declare that a strike is legal or illegal. The Labour Ct. may determine whether the strike is legal or illegal, when it has got the question before it; but it does not mean that the question may not arise in other proceedings. For example, the question may arise in actions for breaches of contract; and it must be held that nothing in the Bombay Industrial Relations Act takes away the power of an ordinary Ct. to decide, or itself the question as to whether a strike is or is not legal, if the question is at issue in any matter before it, & we think that the same principle must apply to the determination by the detaining authority for the purpose of detention whether a strike is or is not illegal. This contention cannot, therefore, be accepted.

13. Then, I come to the next point which has been made on behalf of the detenue. It is said that the third ground is based upon an allegation that the detenu has been secretly publishing unauthorised objectionable news sheets which exhort the public, especially the labouring classes, be start an open & violent revolt to overthrow Govt. It is said that the action has been taken against the detenu for doing so nothing for which it would be proper for the authority concerned to put a restriction upon the detenu's freedom of speech; but inasmuch as all that the detenu has done was to publish unauthorised objectionable news sheets, it was not permissible for the detaining authority to put upon him a restriction in the form of a restriction of his liberty of person.

14. Now, we can understand an argument that, if all that the detenu has done is such that it would warrant action being taken against him restraining him in the exercise of his right of freedom of expression, then, it would not be permissible to take action against him under Article 21 or 22 of the Constitution & the relative provisions of the Preventive Detention Act; but this result follows, not from the fact that what the detenu has been guilty of is a circumstance owing to which it would be permissible for the proper authority to restrict his right of freedom of expression the result, if at all, will follow from the fact that he has not done anything owing to which it would be warrantable to put a restriction upon his liberty of person under the Preventive Detention Act.

15. If we look at the ground which has been given in this case, the ground is not confined to the detenu s secretly publishing unauthorised & objectionable news sheets; the ground says further that the news sheets exhorted the public, especial y the labouring classes, to start an open & violent revolt to overthrow Govt. The contents of the news sheets may obviously be different. It is an offence to publish unauthorised news sheet itself, & no doubt action could be taken against the detenu for publishing an unauthorised news sheet, irrespective of the subject-matter of the news sheet; but if those news sheets did not contain any matter which incited the labouring classes to start an open & violent revolt to overthrow Govt., it would be arguable that the mere publishing of unauthorised news sheets cannot possibly authorise detention under the Preventive Detention Act. But what we find in this case is that the news sheets which were supposed to have been issued by the detenu exhorted the public, especially the labouring classes, to start an open & violent revolt to overthrow Govt. Now, we must assume that that is correct for the purpose of the present petn. We fail to understand why then the act which is complained of does not come within the mischief which the Preventive Detention Act is enacted in order to prevent. It is true that in this case the exhortation is supposed to have been by way of issuing unauthorised news sheets, & that issuing of unauthorised news sheets is a matter which would enable the proper authority to take action restricting the freedom of expression of the detenu; but that by itself would not show that it was not permissible for the detaining authority to take action under the Preventive Detention Act. The same act may, at the same time, warrant restrictions being placed on two freedoms, namely one freedom of the right of expression, & the other, the liberty of the person. The two are dealt with separately, one, under Article 19 & the other under Articles 21 & 22 of the Constitution & in our view, no complaint can he made against the order of detention on the ground that to the extent that the detenu published secretly unauthorised objectionable news sheets action could have been taken against him under the Press (Emergency Powers) Act.

16. The last point which has been made is that the grounds in this case were communicated by Mr. Ghatge & there has not been a compliance, therefore, with the provisions of Article 22(5), which says that the authority aking the order has got, to communicate to the detenu the grounds for his detention. Now, it is quite true that Mr. Damry having been transferredthe grounds in this case were furnished to the detenu by a different person; but Article 22(5) itself contemplates that the grounds are to be furnished after the detention. In that case, it is obvious that it could not have been meant by the words 'the authority making the order' the individual who made it. What is meant by the words 'the authority making the order' is; if the order is made by the Dist. Mag., the Dist. Mag.; if the order is made by the Govt. of a State, the State Govt.; if the order is made by the Central Govt., then, necessarily the Central Govt. We do not think that we would accept the interpretation that the grounds must be furnished by the individual who madethe order, & in case the individual is transferred, or in case anything happens to the individual, new grounds could not be furnished by the person who is appointed to succeed him.

Rule will, therefore, be discharged.

Vyas, J.

17. The detenu was arrested on 14-6-1950, & the grounds of detention were furnished to him on 19-6-1950. Mr. Sule's contention is that as the order of detention was made on 29-3-1950, by Mr. Damry who was the then Dist. Mag. of Ahmedabad, as the said order was not acted upon for more than two months, as Mr. Damry was in the meantime transferred & succeeded by Mr. Ghatge who was the Dist. Mag. on the date of the petnr.'s arrest & as the grounds of detention were furnished to the petnr. by Mr. Ghatge, there was no proper order of detention in this case. It is contended that the application of the mind of a detaining authority must be immediately prior to the date of arrest. Therefore, according to Mr. Sule's the important question in this case would be whether Mr. Ghatge, the Dist. Mag. on thedate of the petnr's arrest, had properly applied his mind to the question of the petnr.'s detention, since the satisfaction of Mr. Damry on the subject would not be a relevant consideration. It is next submitted by Mr. Sule that as Mr. Damry had been relieved of his charge as the Dist. Mag. before 14-6-1950, (date of petnr.'s arrest), the order passed by him on 29-3-1980, could not be acted upon on June 14. Now, we cannot agree with these contentions. We cannot hold that as soon as a Dist. Mag. is transferred relieved of his duties as a Dist. Mag. in a particular District, all his orders lose their value & cease to be orders of a Dist. Mag. & cannot be given effect to. Such a construction would at once lead to administrative chaos, since transfers of officers are an ordinary incident of a day to day administration. We do not think that the delay of two & a half months which occurred in this case between the date on which the order of detenu waspassed & the date on which the detenu was arrested was an unreasonable length of time which required the passing of a fresh detention order by another Dist. Mag, In these circumstances, we think that we must reject Mr. Sule's contention that the order of detention dated 29-3-1950, passed by Mr. Damry, which was executed on 14-6-1950, when Mr. Ghatge was in charge of the District, could not be called a valid order of detention.

18. Now, the grounds which were furnished to the detenu on 10-6-1950, were that-

(1) he was secretly & actively engaged in organising dangerous & violent agitation so as to cause widespread disturbance of peace & disorder in the City & other parts of the District ;

(2) he was up to the time of his arrest wilfully & actively inciting the labour classes, & particularly the textile labourers in Ahmedabad City to resort to illegal strikes & violence for achieving their demands rather than through the machinery set up by the Administration with the ulterior object of bringing about disorder in the City ;

(3) he was secretly publishing unauthorised objectionable news sheets exhorting the public, especially the labouring classes to start an open & violent revolt to overthrow Govt.; and

(4) if left at large he was likely to act in a manner prejudicial to the security of the State & maintenance of public order in the City & District.

Mr. Sule has challenged these grounds for various reasons. But before dealing with these reasons, it would be convenient to deal with the submission of the learned Govt. Pleader that it is not necessary at all to disclose the facts, particulars or details on which the detention order is based. In other words, the contention of the learned Govt. Pleader is that it is sufficient to refer to the grounds in the language of Section 3(1)(a) and (b), Preventive Detention Act, 1950 and that being so, the grounds actually furnished to the petnr. may be ignored from consideration. The learned Govt. Pleader has drawn our attention to Section 3(3) & 8, 7, Preventive Detention Act. Now, in both these sections the expression used is 'the grounds on which the order has been made.' He has then referred us to Sub-clause (a) & (b) of Section 3 (1) of the Act & has argued that these sub-clauses deal with the grounds on the strength of which a detention of a person may be ordered. It is accordingly contended by Mr. Choksi that it is sufficient for the purpose of an order of detention under the Act to describe the grounds in terms of Sub-clause (a) & (b) of Clause (1) of Section 3 & that it is not essential to state the facts, particulars & details relating to those grounds.

19. In our opinion, this contention cannot be accepted. The words 'grounds on which the order has been made' are to be considered in context of the Constitution & the Preventive Detention Act. Clause (5) of Article 22 of theConstitution says that the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made. Now, if by the expression 'grounds on which the order has been made,' we are to construe that only the language of Sub-clauses (a) & (b) of Clause (1) of Section 3 of the Act is to be mechanically copied & reproduced in the grounds to be furnished under the Constitution & the statute of detention, the object of enacting Sub-clause (6) of Article 22 of the Constitution would be defeated at once. Article 22, Sub-clause (6), lays down that 'Nothing in Clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.' This clearly shows that the facts on which the detention is to be based are to be disclosed by the detaining authority, except in so far as the said authority considers the divulging of certain facts to be against public interest. The possible & reasonable construction we can put upon the language of Article 22(6) is that the detaining authority, while furnishing grounds of detention, is required to state facts on account of which he is satisfied that the detention is necessary in the interest of the security of the State, maintenance of public order, etc. The only privilege a detaining authority can claim against disclosure of facts is on grounds of public interest. If no facts at all leading to the detention of a detenu are to be mentioned in the grounds which are to be furnished to him, then obviously the intention underlying the enactment of Clause (6) of Article 22 is frustrated.

20. Further, the purpose of Clause (5) of Article 22 of the Constitution & Section 7 of the Act clearly is that the grounds which are to be furnished to the detenu should be sufficient to enable him to make an effective representation to Govt. in the matter of his detention. If a statute is to be construed in such a way that a representation provided for by it can never be effective, the provision itself becomes meaningless in practice. Now, unless the facts & particulars on the basis of which the detention is ordered are furnished to the detenu in the grounds which are given to him so soon as may be after detention, it is difficult to imagine how he can possibly make an effective representation to Govt. against his detention. Besides, it is the duty of this Ct. to examine & see whether the detaining authority has properly applied his mind to the question of detention of a person, & there again it would be impossible to discharge that duty properly unless the Ct. knows the facts on the basis of which the detainingauthority has chosen to take action against the person concerned. Of course, privilege may be claimed in respect of disclosure of certain facts under Article 22(6) but to say that no facts are required to be stated at all in the grounds of detention is obviously inconsistent with the object underlying Article 22(5) & (6) of the Constitution & Section 7 of the Act. For these reasons I am of opinion that the scheme of the Act is not merely to import mechanically the language of Clauses (a) & (b) of Sub-section (1) of Section 3 of the Act into the grounds given under Section 7, but to give all facts, particulars & details on which the detention is based. All those must be given in the grounds which are to be furnished to the detenu so soon as may be after his detention. The Constitution & the Act do not contemplate the giving of facts, constituting grounds of detention in batches or instalments.

21. In our view, as I have just said, all facts on which the detention order is based ought to be furnished to the detenu in the grounds to be given to him under Section 7 of the Act & Clause (5) of Article 32 of the Constitution, unless, of course, the detaining authority under Clause (6) of Article 22 considers the disclosure of certain facts to be against public interest. In this context, I must point out that we have noticed a general, but definite, tendency amongst the detaining authorities to gay in their affidavits in a vague way that whatever is stated in the grounds of detention is the only material which could be furnished to the detenu & that any further disclosure is against public interest. For instance, in this particular case, the detaining authority has made an affidavit, in para. 12 of which it is stated :

'Besides the grounds given to the appct. no other facts could be disclosed as it is considered to be against the public interest to disclose them.'

Now, I must express disapproval of the omnibus manner in Which recourse is taken to Article 22(6) of the Constitution for claiming privilege. In my opinion, such general, indefinite & omnibus expression as is employed in para. 12 of the detaining authority's affidavit is open to a real danger that it may be used sometimes to shut out some possible contentions which a detenu may take in order to challenge his detention. That surely could never have been the intention of the Constituent Assembly in enacting Clause (6) of Article 22. As I have said, it is the duty of this Ct. to satisfy itself that the detaining authority's satisfaction as required by Section 3 of the Act has proceeded from a proper application of his mind. It is the detaining authority who is required to satisfy himself from the materialsbefore him that a detention of a person is called for. It 18 he who decides what facts should be stated in the grounds to be given to a detenu under Section 7 & what facts should be withheld under Article 22(6) of the Constitution. The Ct. knows nothing about it, unless told It is true that it is not for the Ct. but entirely for the detaining authority, to decide about the sufficiency or otherwise of the grounds for detention, but it is certainly obligatory upon the detaining authority to communicate the grounds, i.e., facts on which the detention is based, to the detenu. He knows what facts he has considered it against public interest to disclose; for instance, it is he who knows whether, in his opinion, it is against public interest to mention in the grounds of detention the time, place, manner, method & nature of activities, person or persons, class of person or persons affected by those activities, etc., & he ought to specify those points which, according to him, are privileged under Article 22(6). In my view, it could not possibly be contended genuinely that it is against public interest even to say this much 'I consider it against public interest to disclose the details regarding time, place, person, manner, method or nature of activities, etc., besides those which are stated in the grounds of detention.' Usually the activities are referred to as subversive or dangerous, but what the activities are & how they are subversive or dangerous is not stated in the grounds. The time at which or within which the petnr. is alleged to have acted prejudicially, the person or persons against whom he is suspected to have acted, the place or places where his activities were done & such other details which are relevant to the detention are generally not stated in the grounds of detention. I agree that if the disclosure of these facts is against public interest, the withholding thereof from the detenu & the Ct. will be protected by Article 22(6). But, in any case, the bare points on which the privilege is claimed can be mentioned, & ought to be mentioned, without giving details regarding them. It is difficult to imagine how public interest can possibly be affected adversely by a mere statement of bare points on which the detaining authority claims privilege to withhold their details. Of course, it is possible that even if the detaining authority specifies the points regarding which privilege is claimed under Article 22(6), the petnr can always think of & allege other points or matters which are not covered by the points specifically mentioned as privileged That may be so. But, in my opinion, on that score a statement of points regarding which privilege is claimed under Article 22(6) cannot be withheld from the petnr.& the Ct., since in absence of such statement the Ct. might find itself in some cases in difficulty of deciding whether there was a proper application of the mind, of the detaining authority. In short, it is necessary, in my view, that facts & particulars on which the detention is based should be stated (not of course in instalments or fractions) in the grounds of detention, & if disclosure of details on certain points is considered against public interest a statement of bare points at least regarding which privilege is exercised under Article 22(6) should be made in the affidavit of the detaining authority.

22. Now proceeding to the grounds, we have already stated that the first ground alleged is that this particular detenu was secretly & actively engaged in organising dangerous & violent agitation. Now, in our opinion, there is no doubt that this ground is vague & general. It does not state, for instance, what precisely was the nature of his -activities & how those activities were dangerous & what violence was involved in them & against whom. Therefore this ground, being not clear enough so as to enable the petnr to make an effective representation against it, is not, in our opinion, a valid ground of detention.

23. Ground No 2 reads as follows :

'That you were upto the time of your arrest wilfully & actively inciting the labour classes & particularly the textile labourers in Ahmedabad City to resort to illegal strikes & violence for achieving their demands rather than through the machinery set up by the Administration with the ulterior object of bringing about disorder in the City.'

It is contended by Mr. Sule that unless a Ct. established under the Bombay Industrial Relations Act has decided that a strike is illegal, it) is incorrect for a detaining authority to say that a person is inciting other persons to resort to illegal strikes. All strikes are not illegal. What facts, conditions or circumstances make a strike illegal is laid down in the Bombay Industrial Relations Act, but it is for the Ct. under that Act, to determine whether those facts & conditions apply to a particular strike & declare it illegal if they do apply. It is argued that unless a strike is decided as illegal, it could not be said by a detaining authority that an illegal strike was incited by anybody. Of course, it is conceded by Mr. Sule that he does not contend that no action of any kind under any law can be taken in respect of a strike unless there is a prior decision of a labour Ct. or an appellate Ct. (the Bombay Industrial Ct.) to the effect that the said strike is an illegal strike. His contention is that whenever a penalty is to be imposed upon a person or whenever detention order is to be passed against him in pursuance of an alleged incitement by him to resort to astrike, the said action cannot be taken until there is a prior determination by a Labour Ct.or the Bombay Industrial Ct. that the strike actual or in offing is an illegal strike. On the other hand, it is contended by the learned Govt. Pleader that on one or the other of theconditions referred to in 9.97, Bombay Industrial Relations Act, 1946, coming into existence, thestrike automatically becomes illegal, & therefore a detaining authority holding that a certain person was inciting others to resort to such a strike can proceed to take action against him under the Preventive Detention Act without waiting till the determination of the illegality of the strike by the Labour Ct. or the Bombay Industrial Ct. On the reading of the Bombay Industrial Relations Act particularly Sections 99, 101(1)(g) & 103 we agree with Mr. Sule that as far as action under the Bombay Industrial Relations Act is concerned, it cannot be taken against a person unless there is a prior determination by a Labour Ct. or the Bombay Industrial Ct. that there was an illegal strike. For instance, Section 101(1)(g) says that no employer shall dismiss, discharge or reduce any employee or punish him in any other manner by reason of the circumstance that the employee has gone on or joined a strike which has not been held by a Labour Ct. or the Industrial Ct; to be illegal under the provisions of this Act. We agree that an employee of a mill could not be dismissed by his employers on the ground that he had gone on or joined any strike unless there was a prior determination by the Labour Ct. or on an appeal by the Industrial Ct. that the strike was an illegal strike. Then, there is Section 103 which says that an employee who has gone on strike or who joins a strike shall be punished with fine, etc., etc. There again we accept Mr. Sule's contention that an employee cannot be proceeded against unless there is a prior decision by a Labour Ct. or the appellate Ct. that the strike that he joined was an illegal strike. Then there is Section 99 which says that the Provincial Govt. may make a reference to the Industrial Ct. for a declaration whether any proposed strike, lock-out, closure or stoppagewill be illegal. This shows that if the Provincial Govt. wants to take action in respect of a strike which has not yet taken place, but which is threatened to take place, they must first obtain a declaration from the Industrial Ct. that the strike which is threatened will be an illegal strike Therefore, Mr. Sule's contention is right that if any action is to be taken against anybody under the Bombay Industrial Relations Act, 1946, there must be a prior determination by a Labour Ct. or on appeal by the Industrial Ct. that the strike is an illegal strike. In thisparticular case, however, we are dealing with action under the Preventive Detention Act & not under the Bombay Industrial Relations Act. That being so, we cannot accept the argument of Mr. Sule that unless there is a prior determination by a Labour Ct. or the Industrial Ct. that the strike is an illegal one no action for detention of a person can be taken under the Preventive Detention Act. Section 97 Bombay Industrial Relations Act speaks of certain conditions which would make a strike illegal & if a detaining authority thinks that one or the other of those conditions exists & the strike which is incited to be resorted to is illegal on that score, our view is that it is open to him to take action under the Preventive Detention Act against the person concerned That being so, in our view, ground No. 2 of the grounds is a good and valid ground.

24. This takes us to the last ground, which says that the detenu was secretly publishing unauthorised objectionable news sheets exhorting the public especially the labouring classes to start an open & violent revolt to overthrow Govt. It is contended by Mr. Sule that every individual has got a fundamental right of freedom of expression & if that right is to be curtailed in any manner, it can only be curtailed under the Press (Emergency Powers) Act which specifically deals with such curtailment. In our view, the argument fails. Liberty of a person is a much wider thing than freedom of expression & what was sought to be curtailed in this case was the liberty of the detenu as distinguished from his freedom of expression. Moreover, this ground alleges that the detenu was exhorting the public to start an open & violent revolt to overthrow Govt. That, at any rate, is a valid ground for detention of a person under the Preventive Detention Act. Accordingly we do not see much force in the last contention of Mr. Sule also. In our view, grounds NOS. 2 & 3 of the grounds stated by the detaining authority are good & valid grounds.

25. Although para. 12 of the detaining authority's affidavit is too general & vague, in my view, we are satisfied from the consideration of the grounds as they were given that the detaining authority bad applied his mind properly to the question of the detention of this detenu.

Accordingly the appln. fails & is dismissed.


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