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Miss Sushila Madiman Vs. Commissioner of Police - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 441 of 1950
Judge
Reported inAIR1951Bom252; (1950)52BOMLR794; ILR1951Bom9
ActsPreventive Detention Act, 1950 - Sections 7(1) and 7(2); Constitution of India - Article 22(5) and 22(6)
AppellantMiss Sushila Madiman
RespondentCommissioner of Police
Appellant AdvocateA.S.B. Chari, ;L.M. Javeri and ;H.S. Bhatt, Advs.
Respondent AdvocateH.M. Choksi, Government Pleader
DispositionApplication allowed
Excerpt:
.....detention act (iv of 1950), section 7(1), (2)--particulars to be furnished to detenue by detaining authority--whether discretion to furnish such particulars left to detaining authority--non-disclosure of facts against public interest--discretion rested in detaining authority when challengeable.;under article 22(5) of the constitution of india, as also under section 7(1) of the preventive detention act, 1050, it is incumbent upon the detaining authority to disclose all facts which would enable the detenue to make a representation against the order which has been passed depriving him of his liberty, and it would be for the court to determine whether the facts disclosed are sufficient or not sufficient to give the detenue the necessary opportunity to make the representation under..........the detenue the grounds on which the order had been made. the act also made it incumbent upon the detaining authority to furnish such other particulars as were in its opinion sufficient to enable him to make a representation to the provincial government against the order. this section was subsequently amended and the word 'other' appearing before 'particulars' was deleted. but the position in substance under the law remained the same, and the position was that whereas there was an obligation upon the government to furnish the grounds, it was left to the discretion of the detaining authority to decide and determine what particulars it should furnish to the detenue. when the position in law was as i have just stated, a full bench of this court had to consider what rights the subject had.....
Judgment:

Chagla, C.J.

1. This is an application under Section 491, Criminal P. C., and the order under which the detenu was detained by the Commissioner of Police, Greater Bombay, is dated 27-2.1960, and the order is made under the new Central Act. Grounds were furnished to the detenue on 16-8-1950, and the grounds are: ''That you along with your associates have been collecting and are likely to collect arms and ammunitions illegally for illegal purposes and illegal activities.' The Government pleader contends that on a similar ground in an earlier case we upheld the detention, holding that the ground was clear, precise and accurate. Mr.Chari, on the other hand, contends that since the coming into force of the new Constitution and the passing of the Central Act the position in law has materially altered, and in view of the alteration of the law the ground furnished is not such as to satisfy the provisions of the law. When we held that this ground was adequate we were governed by the Bombay Public Security Measures Act and the material provisions of that Act were contained in Section 3 which made it incumbent upon the Provincial Government to communicate to the detenue the grounds on which the order had been made. The Act also made it incumbent upon the detaining authority to furnish such other particulars as were in its opinion sufficient to enable him to make a representation to the Provincial Government against the order. This section was subsequently amended and the word 'other' appearing before 'particulars' was deleted. But the position in substance under the law remained the same, and the position was that whereas there was an obligation upon the Government to furnish the grounds, it was left to the discretion of the detaining authority to decide and determine what particulars it should furnish to the detenue. When the position in law was as I have just stated, a Full Bench of this Court had to consider what rights the subject had when he was deprived of his liberty under the Public Security Measures Act, and the Full Bench came to consider the position in In re Rajdhar Kalu Patil 50 Bom. L. R. 183: A. I. R. 1948 Bom. 334 : 49 Cri. L. J. 465 . The Full Bench emphasised the act that the safeguard with regard to the furnishing of grounds was the only safeguard that the subject had under the Act and that safeguard should be maintained intact and should not be in any way whittled down, and the Full Bench went on to hold that (p. 187):

'Without encroaching upon the right of Government to decide what particulars to furnish and what particulars not to furnish, it is necessary to state that the grounds must be given with sufficient particularity for them to serve the purpose they were intended to serve. In our opinion grounds which are vague and indefinite and which contain no particulars whatever are no grounds at all within the meaning of Section 3 of the Act.'

2. It may be pointed out that under Section 3 of the Bombay Act there was no obligation upon the detaining authority to disclose any facts which it considered to be against public interest to disclose. Therefore, the detaining authority under the Bombay Act need not disclose any act which it was for it to decide was against public interest, and even with regard to particulars, it need only give such particulars as in its opinion were sufficient to enable the detenu to make a representation. Now, when we turnto our new Constitution, the relevant article with which we are concerned is Article 22. That article deals with preventive detention; but while dealing with that subject it confers upon the subject certain rights and privileges which are fundamental in their character and the observance of which is made obligatory upon the Legislatures in the country. A preventive detention cannot be justified or supported if there has been a violation of any of the safeguards provided by Article 22 of the Constitution, and one of the most important safeguards is contained in Sub-clause (5) of Article 22, which provides :

'When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.'

Then Sub-clause (6) provides :

'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.'

3. Mr. Chari's argument is that Sub-clause (5) of Article 22 gives a higher protection to the subject than was given by the Bombay Act. The contention is that whereas it was left to the discretion of the detaining authority as to what particulars to furnish to the detenu under the Constitution, that discretion is not left to the detaining authority. It is now for the Courts to decide whether the grounds furnished are such as to enable the detenu to make the representation contemplated by Sub-clause (5). In our opinion, that contention is sound and must be accepted. We cannot accept the view put forward by the Government Pleader that there is no connection whatever in Sub-clause (5) between the grounds which are to be furnished and the representation which the detenu has to make in respect of those grounds. According to the Government Pleader all that Sub-clause (5) provides is that an opportunity should be afforded to the detenue of making a representation against the order at the earliest opportunity. And according to the Government Pleader this opportunity is merely a mechanical opportunity, a sort of a postal opportunity for communicating the representation from one end to the other. That is taking, in our opinion, much too narrow and much too unjustified a view of the important safeguard given to the subject under Sub-clause (5). The opportunity contemplated is an opportunity which the detenu can avail himself of as a result of the grounds furnished to him. In other words grounds must be such as to enable the detenu to make a representation with regard to his innocence. Therefore it is clear that inSub-clause (5) there is implict the necessity for disclosing such facts aa are necessary to give the proper opportunity to the detenu to make a representation against the order by which he has been detained ; and whether the facts disclosed are sufficient or not, it is not for the detaining authority to determine, but for the the Court to decide. The Government Pleader has gone to the length of suggesting that the new Constitution far from enlarging the liberty of the subject has restricted it and curtailed it, and according to the Government Pleader whereas the Bombay Act made it incumbent upon the detaining authority to furnish at least some particulars under the Constitution the detaining authority need not furnish any particulars or disclose any facts and could satisfy itself by giving the bald ground which led the detaining authority to the satisfaction required by the Preventive Detention Act. We should need much stronger argument than has been advanced by the Government Pleader to satisfy us that our Constitution really intended to out down the very few safeguards which the Preventive Detention Act affords to the subject. Fortunately, in our opinion, the language of Sub-clause (5) and Sub-clause (6) does not drive us to that conclusion. If the Government Pleader's contention was correct, then in our opinion there would have been no reason whatever to enact Sub-clause (6). If it was not incumbent upon the detaining authority to disclose any facts whatsoever and just to content itself by giving merely the conclusion or the reason which actuated the detaining authority in making the order, then it was not necessary to provide in Sub-clause (6) that the detaining authority may not disclose such facts which in the opinion of the detaining authority are against the public interest to disclose. Reading Sub-clause (6) and Sub-clause (6), in our opinion the true position s that Sub-clause (6) refers to that limited class of facts which the detaining authority is not under an obligation to disclose and that limited class of facts is that which in the opinion of the detaining authority is against the public interest to disclose. As far as Sub-clause (6) is concerned, it is perfectly true that it is entirely for the detaining authority to decide whether a certain fact is or is not against public interest. We should like to make it clear that the exercise of the discretion vested in the detaining authority by Sub-clause (6) may be challenged on the ground that the discretion has been exercised arbitrarily, capriciously or mala fide ; but if the discretion is properly exercised, it is not for the Court to sit in judgment on an opinion formed by the detaining authority that certain facts are not in the public interest to disclose. But subject to that it is incumbent upon thedetaining authority under Sub-clause (5) to disclose all facts which would enable the detenu to make a representation against the order which has been passed depriving him of his liberty, and it would be for the Court to determine! whether the facts disclosed are sufficient or not, sufficient to give the detenu the necessary opportunity to make the representation under Sub-clause (5).

4. Now, turning to the Central Act which has been passed in conformity with Article 22 we find a provision there similar to Sub-clauses (5) and (6) of Article 22 and that provision is to be found in Section 7 (1) and Section 7 (2) of the Act. The Government Pleader has drawn our attention to the scheme of the Central Act and according to him the scheme of that Act further emphasises his contention that under the law as it prevails today there is no obligation upon the detaining authority to furnish any particulars or to disclose any facts whatsoever. He draws our attention to Section 3 (3) which provides that,

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

Then under Section 9, which provides for reference to Advisory Boards, there is a provision that any report made by any of the officers referred to in Section 3 (3) has got to be placed before an Advisory Board, and the Government Pleader's contention is that there is a machinery for submitting of particulars before the Advisory Board which is to be set up under the Act, and apart from the Advisory Boards there is no provision in the Act for the furnishing of particulars. Now, the main function of the Advisory Board is to consider the justification of the detention and it is impossible to hold that that justification can be arrived at by merely looking at the particulars furnished under Section 3 (3) without considering the representation made by the detenu with regard to those particulars. It is only when the detenu is told not only the ground on which he is detained, but also the material facts on which the ground is based that he would be in a position to make a representation which could be usefully considered by the Advisory Board. If the Government Pleader'a contention was correct, then the Advisory Board would have to come to a conclusion as to the merits of a particular oase referred to it from a complete statement of facts from the point of view of the detaining authority and a representation made by the detenu in respect of grounds which may contain no particulars and which may be based on no facts whatsoever. It is notpossible to accept a contention which would lead us to the conclusion that the protection given of the Advisory Boards was intended to be purely illusory, if not farcical. The Government Pleader has relied on the case of Liversidge v. Sir John Anderson 1942 A. C. 206 : 110 L. J. K. B. 724, and his contention i3 that in that case the House of Lords held that the Secretary of State was not bound to give any particulars, That is a clear misreading of the decision. By Clause (4) of the Regulation which the House of Lords was considering there was no duty cast upon the Secretary of State to furnish any ground. All that that clause provided was that the Secretary of State should afford opportunities to the detenu of making a representation. The grounds had to be furnished under Clause (5) and those grounds had to be furnished by the Chairman of the Advisory Committee. What the House of Lords held was that the Secretary of State was not bound to give particulars to show that he had reasonable cause to believe that Liversidge was a person of hostile associations. The whole decision turned on the meaning to be given to the expression 'reasonable cause,' and as the majority of the House held that 'reasonable cause' was subjective and not objective, the matter was one for the executive discretion of the Secretary of State. With respect to the Full Bench whose decision in In re Jayantilal Nathubhai 51 Bom. L. R. 658 : A. I. R. 1949 Bom. 319 : 51 Cri. L. J. 184 , was relied upon by the Government Pleader, some confusion seema to have been caused with regard to the provisions of Clauses (4) and (5) of the Regulation, and Bavdekar J. at p. 662 does not apparently seem to have noticed that in the case of Greene v. Secretary of State (1942) A. C 284: 111 L. J. K. B. 24, particulars were furnished by the Chairman of the Advisory Board which ran into six paragraphs. In our opinion, therefore, the present case must be looked at from an entirely different point of view to the one with which we approached similar cases in the past. We have first to consider whether the ground or grounds given contain facts or materials sufficient in our opinion to enable the detenu to make a representation. Then we have to consider whether any of the facts which we think are necessary have been rightly withheld by the detaining authority on the ground that a disclosure of such facts would be against public interest. If no such facts have bean withheld on the ground of public interest and they have not been disclosed, then we must come to the conclusion that the provisions of the Central Act not having been complied with the detention is not valid and the detenu must be set free.

5. Applying this test to the grounds given in this case we are of the opinion that the grounds are not such as to enable the detenus to make a proper representation. In our opinion most material facts and particulars have been withheld and the withholding has not been on the grounds of public interest. The detanue is not told when she was collecting arms. Leaving aside the exact time or the exact day, she is not even told the month or the year when she was collecting these arms. She is not told the place where the arms were collected; whether they were in the City of Bombay, in the suburbs, in the State of Bombay or out side the State of Bombay. She is vaguely told that these arms are collected for illegal purposes and illegal activities. Not even a hint is given as to what these purposes and activities are supposed to be, Now, let us see whether we have any affidavit before us where the detaining authority claims privilege on the ground of public interest from the disclosure of facts which we think are material facts. There is the affidavit of Mr. Chudasama, Commissioner of Police, and this is what he says in para. 3 of that affidavit :

'There is sufficient material in my possession to show that the detenue and her associates were concerned in illegal collection of arms and ammunition and that the arms and ammunition were so collected for illegal purposes and illegal activities. There was also sufficient reason to believe that the detenue was likely to continue the said activities. It is not in public interest to disclose all the material in my possession.'

It may not be in public interest to disclose all the material; but Mr. Chudasama does not suggest, as indeed he cannot suggest, that it would be against public interest to disclose some of the particulars and material facts to which we have drawn attention earlier in the judgment. The result, therefore, is that in our opinion the grounds furnished are not the grounds contemplated by the Central Act, and in failing to furnish the proper grounds the provisions of the Central Act have not been complied with, and on failure of such compliance the detention of the petitioner cannot be justified.

6. The result is that the application will be granted and the detenue will be ordered to be released. The petitioner is entitled to her costs of this application.


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