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In Re: Jayantilal Nathubhai Parekh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application No. 1006 of 1948
Judge
Reported inAIR1949Bom319; (1949)51BOMLR653
AppellantIn Re: Jayantilal Nathubhai Parekh
Excerpt:
bombay public security measures act (bom. vi of 1947), section 2(1)(a), 3, 21-'satisfaction'-'it appears'-'in their opinion'-interpretation-grounds and particulars-sufficiency of-court to valuate them-omission to state that detenu can make representation to provincial government, whether irregularity.;whenever words like 'satisfaction' or 'it appears' are used in an enactment (e.g. section 2(1)(a) of the bombay public security measures act) or a regulation, the satisfaction is a condition precedent to the exercise of powers under the section. when subsequently an application is made challenging the existence of the satisfaction, what the courts have got to see is whether there was the subjective satisfaction of the authority which made the order and not whether there were grounds upon.....bavdekar, j.1. this is an application under the provisions of section 491 of the criminal procedure code for release from detention of the applicant who, now it appears from the return which has been made, is detained by an order passed by the district magistrate of ahmedabad bearing the date april 2, 1948, for his detention. it was the case of the applicant that he was actually arrested in the district of surat on april 30, 1948, without a warrant and without any copy of any detention order being served upon him, and that a copy of the order, which it is now contended authorized the detention, was given to him only on may 3, 1948. he said that consequently, in the first instance, his arrest was illegal, and, secondly, that his detention under the order was also illegal, because, even.....
Judgment:

Bavdekar, J.

1. This is an application under the provisions of Section 491 of the Criminal Procedure Code for release from detention of the applicant who, now it appears from the return which has been made, is detained by an order passed by the District Magistrate of Ahmedabad bearing the date April 2, 1948, for his detention. It was the case of the applicant that he was actually arrested in the district of Surat on April 30, 1948, without a warrant and without any copy of any detention order being served upon him, and that a copy of the order, which it is now contended authorized the detention, was given to him only on May 3, 1948. He said that consequently, in the first instance, his arrest was illegal, and, secondly, that his detention under the order was also illegal, because, even though the order bore the date April 2, 1948, when it was served upon him, it was an ante-dated order which had not been passed on April 2, 1948. There were other grounds upon which he said that the order was bad; but it will be more convenient to mention them a little later.

2. The order in this case purports to be passed under Section 2 of the Bombay Public Security Measures Act (Bom. VI of 1947). Section 2, Sub-section (1), Clause (a), of which enables the Provincial Government, if it is satisfied that any person is acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquillity of the Province or any part thereof, to make an order directing that he be detained. Section 21 of the same Act then provides that:-

The Provincial Government may by an order direct that any power or duty, which is conferred or imposed on the Provincial Government, shall in such circumstances and under such conditions, if any, as may be specified in the order, be exercised or discharged by any officer or authority subordinate to it, not lower in rank than a Deputy Commissioner of Police in Greater Bombay, or the District Magistrate, or Additional District Magistrate elsewhere.

It appears that under a notification to which reference will be made later the powers of the Provincial Government under Section 2 have been delegated to the District Magistrate of Ahmedabad; and the District Magistrate purports to make this order under Section 2 because of the powers so delegated to him.

3. Now, where an order is made under Section 2, Sub-section (1), Section 3 of the same Act requires that the Provincial Government should, as soon as may be, communicate to the person affected by the order the grounds on which the order has been made, without disclosing fatcts which it considers against the public interest to disclose and also furnish him with such particulars as are in its opinion sufficient to enable him to make a representation to the Provincial Government against the order. The applicant mentions in his application that in accordance with the provisions of this section the District Magistrate, who is again in pursuance of the same notification burdened with the responsibility under Section 3, furnished him with the grounds of his detention and such particulars as were in his opinion sufficient to enable him to make a representation, and all that those grounds and particulars stated was that the applicant was acting in a manner prejudicial to the public safety and the maintenance of public order, that he was inciting agricultural labourers to resort to violence against landlords and that he was inciting his associates and followers to form an unlawful army.

4. It was contended on behalf of the applicant in his application that, in the first instance, this order was a mala fide order passed by the District Magistrate. It was passed not because the District Magistrate was satisfied as required by Section 2, Sub-section (1), that the applicant was acting in a manner prejudicial either to the public safety or the maintenance of public order or the tranquillity of the city of Ahmedabad as the order mentioned, but in order to prevent the applicant, who is the Secretary of the Kisan Sabha of Ahmedabad, from carrying on the legitimate activities of that Sabha and also of the Communist Party of India of which the applicant is a member. It stated, in the second instance, that the applicant was not inciting agricultural labourers to resort to violence against landlords and he was also not inciting his associates and followers to form unlawful armies, because there were no agricultural labourers in Ahmedabad and the applicant has not got any followers or associates. The applicant is the Secretary of the Kisan Sabha of Ahmedabad, but the applicant said, nevertheless, that people who were members of the Sabha were not his followers, and that the Kisan Sabha had not a single member in the city of Ahmedabad. The applicant said, therefore, that what the District Magistrate stated in his order could not possibly be true. Thirdly, the applicant contended that the grounds which were given to him were vague grounds, and the communication which the District Magistrate made to him was consequently bad for two reasons. In the first instance, the applicant did not know what representation he was to make because of the vagueness of the grounds and the particulars which were supplied to him. In the second instance, the only safeguard which has been provided for the liberty of a subject under the Public Security Measures Act, 1947, is that mentioned in Section 3, which requires the Provincial Government, or in case the powers in respect of any particular area are delegated to the District Magistrate, the District Magistrate to communicate to the person detained the grounds on which the order had been made and such other particulars as are in his opinion sufficient to enable the detenu to make a representation to the Provincial Government. It is said that the District Magistrate acted in contravention of Section 3 when, instead of furnishing proper grounds when the applicant applied for them, he furnished, what may be called, vague grounds. There was, therefore, failure to comply with, the mandatory provisions of Section 3 and consequently the detention was bad.

5. Then there is made before us, what may be called, a subsidiary point and that is that Section 3 of the Bombay Public Security Measures Act, 1947, requires the Provincial Government, or when the liability for communicating under Section 3 was laid upon the District Magistrate, the District Magistrate, to inform the detenu not only with regard to the grounds and particulars but also with regard to a right which the detenu had, namely, to make a representation to the Provincial Government against the order. The applicant pointed out that the grounds which were furnished to him did not specifically tell him that he had a right to make a representation to the Provincial Government against the order. It was said that consequently there was another failure in regard to the mandatory provisions laid down in Section 3 and the order of detention was consequently bad.

6. Now inasmuch as the applicant challenged the bona fides of the District Magistrate who passed the order for detention, we have had placed before us in this case affidavits filed by two persons holding, at different times the charge of the post of the District Magistrate of Ahmedabad. The first is the affidavit of Mr. Modi, who. was the District Magistrate at the time when the order for detention purports to have been made. He said in his affidavit that it was not true that the order was ante-dated, it was not true that it was passed mala fide, it was also not true that the order was passed without applying his mind to the question as to whether there were before him sufficient grounds for satisfying himself that the applicant was acting in a manner prejudicial to the public safety or the maintenance of public order in the city of Ahmedabad. There was, however, no counter affidavit filed, either by Mr. Modi or by the subsequent District Magistrate, Mr. Damry or any one else, that there were agricultural labourers in the city of Ahmedabad, nor was there any affidavit filed that the applicant as a matter of fact had followers and associates. The subsequent affidavit of Mr, Damry was that he supplied the grounds upon which the applicant was detained to the applicant from the papers which were with him in the record of the order for detention passed against the applicant; and he said that he could say from those papers that there were grounds before the then District Magistrate upon which to come to the conclusion that the applicant was acting in a manner prejudicial to the public safety and the maintenance of public order in the city of lAhmedabad.

7. Now, it is quite true that the applicant in this case was arrested in the District of Surat on April 30, 1948, without a warrant. It is the case of the Crown that the applicant was arrested under the order, which he admits was served upon him on May 3, 1948, in the Sabarmati Jail where he was detained. The applicant contested by his application that as a matter of fact he was arrested in pursuance of the order dated April 2, 1948. It was his case that this order was not in existence at the time of his arrest but an ante-dated order bearing date April 2, 1948, was subsequently fabricated. We have in this case affidavits of both Mr. Modi, who was the then District. Magistrate of Ahmedabad, and his successor Mr. Damry, who says that Mr. Modi did as a matter of fact pass, i.e. he found an order in the papers bearing the date April 2, 1948, the order under which the applicant is being detained. It was not a matter within the knowledge of the applicant whether as a matter of fact the District Magistrate had passed on April 2, 1948, the order of detention against him or not. It is obvious therefore that when it comes to the question as to whether the order was ante-dated or was passed on April 2, 1948, we must accept the affidavits which have been filed before us by Mr. Modi and by Mr. Damry that he found in the papers which were before him the order of April 2, 1948, directing that the detention of the applicant should be made against which there is nothing except an affidavit of the applicant not based upon knowledge. In our view therefore there is no substance in the contention of the applicant that his detention was under an order which was ante-dated.

8. The learned Counsel who appears on behalf of the applicant has raised the contention that, assuming that the order was passed on April 2, 1948, the applicant could not be arrested in the District of Surat, which was an area over which the District Magistrate of Ahmedabad has got no magisterial jurisdiction. He points out that, even though the powers of the Provincial Government under Section 3 of the Bombay Public Security Measures Act, 1947, have been delegated to the District Magistrates, the District Magistrates are not empowered to exercise the powers delegated to them over the whole of the Province of Bombay. The order which the Government of the Province of Bombay have passed is as follows:-

In exercise of the powers conferred by Section 21 of the Bombay Public Security Measure Act, 1947 (Bombay Act VI of 1947), the Government of Bombay is pleased to direct that the powers conferred and duties imposed on it by sub-sections (1), (2) and (4) of Section 2 and by Sections 3 and 4 of the said Act shall also be exercised and discharged within their respective jurisdictions by the Commissioner of Police, Bombay, in Greater Bombay and District Magistrates and the Additional District Magistrates elsewhere.

So the powers of the District Magistrate of Ahmedabad were confined to his jurisdiction, that is to the area comprised in the revenue district of Ahmedabad. It is contended therefore that, even if the order which was passed was on account of the satisfaction in the mind of the District Magistrate that the applicant was acting in a manner prejudicial to the public safety and the maintenance of public order in the City of Ahmedabad, it could not be executed outside the district of Ahmedabad, and if that is so, the arrest of the applicant was illegal; and it is said consequently that his subsequent detention under the order, though it may be within the district of Ahmedabad, is also illegal.

9. Now it is quite true that under the Bombay Act VI of 1947, as it originally Was and the delegation of the powers under the notification which has been reproduced above, the District Magistrates would have power to make orders only in regard to the public safety or the maintenance of public order or the tranquillity of the areas which are within their jurisdiction, and they would also have power to direct detention in a jail again within that jurisdiction. We are told that there have been amendments made subsequently empowering the detention elsewhere. But with that we are not concerned in the present case; and it is arguable therefore that, if an order is made under Section 2 by a District Magistrate, the person who it is intended to be detained could be arrested within the jurisdiction of the District Magistrate and nowhere else. But what we are concerned with in this case is not whether the arrest of the applicant was legal or illegal but whether his detention under the order passed is legal or illegal. The detention of which he complains by his application was the detention in the Sabarmati Jail of Ahmedabad on the date when he made the application, that is on June 3, 1948, and it appears to us that it is immaterial for the determination of the question before us as to whether his prior arrest and his prior detention Were or were not legal. It is not as if in this case after an illegal order for detention was made subsequently because of powers conferred an order Was made continuing the original order for detention, which was in itself illegal. In such cases the view that has prevailed in this Court is that where the subsequent order, even though made after the amendment conferring greater powers, continued the original order for detention which was bad, the subsequent order is also bad. But that is not what we are concerned with in the present case. It may frequently happen that even though a person is detained originally under an invalid order, subsequently a valid order for detention happens to be made in his regard. Even if the detenu is under detention at the time when the subsequent order is made, the fresh order of detention has to be served upon him, and when subsequently the jailor is called upon to justify the detention by the detenu, it is sufficient if he points out to a valid order when the return is made in order to give him a complete answer to the charge that he is detaining at the time without lawful authority the detenu in question. The question under the Habeas Corpus Act is as to whether the detention of which the detenu complains, that means the detention at the time when he seeks to take out a writ of habeas corpus, is valid or not, which again resolves itself into the question whether at the moment there is for his detention a valid order in existence, and if there be such an order, then no writ of habeas corpus can be issued in his favour.

10. That brings to us, what may be called, the principal contentions which have been raised on behalf of the applicant. The first is the contention that the order which was passed was mala fide; not, indeed, because the District Magistrate had any grudge against the applicant but the order was not passed in order to safeguard the public safety or the tranquillity in the city of Ahmedabad; it was passed with an ulterior motive to prevent the applicant from carrying on, what may be described as the lawful activities of the Kisan Sabha and the Communist Party, which, the applicant says, have not been declared unlawful organizations. Now the section which permits the detention of the applicant says that an order for detention could be made if the Provincial Government, or where the power is delegated to its subordinate officer then the said officer is satisfied that the person who is to be detained is acting in a manner prejudicial to the public peace and the maintenance of public order or the tranquillity of the Province or any part thereof; and whenever words like 'satisfaction' or 'it appears' have been used in an enactment or a regulation, the interpretation which has now been established is that the 'satisfaction' is undoubtedly a condition precedent to the exercise of powers under the section. But all the same, what the Courts have got to see, when subsequently an application is made challenging the existence of that satisfaction, is whether there was the subjective satisfaction of the authority which made the order and not whether there were grounds upon which a reasonable person could be satisfied that it was necessary to make the order; such being at times called an objective test of the satisfaction. But even though that view may be taken to have been established, as it has been pointed out frequently, the satisfaction of the mind is just as much a state of fact as, for example, the state of digestion, of the person who makes the order, and consequently if any one challenges that the authority which made the order had not the state of mind which could be described as a state of 'satisfaction', it is open to the Court to say that it must be satisfied as to the state of the mind of the person who made the order and to take evidence as to the existence of the state of mind. But all the same, even though it is open to the Court when the bona fides of the authority which made the order are challenged to take evidence with regard to the state of the mind, one must not approach the order, the validity of which is challenged, with prejudice which may possibly have been derived from past experience.

11. It has been pointed out to us that in the past orders have frequently been made which have been found to be careless. It has been found at times that an order is made without the application of the mind of the authority which made the order, and sometimes as a matter of fact even with an ulterior motive, that is, not in order to safeguard the public safety or the maintenance of public order or the tranquillity of the area in whose interest the order is made, but in order to achieve some other object which was not within the purview of the Act. That is regrettable; but all the same when an officer, whom the Legislature obviously regards as responsible because it thought that it would be safe if the powers of the Provincial Government were delegated to him under Section 21, makes the order, the burden is upon the person who challenges the bona fides of the officer to show that as a matter of fact whatever the officer might have stated in his order with regard to his satisfaction, the order as a matter of fact was passed without such sastisfaction. We have no doubt that such burden must, owing to the fact that the detenu cannot possibly know of the evidence upon which action has been taken against him, lie very heavily upon him. But that does not affect the fact that the burden is upon him and he must discharge that burden, which is heavy, by leading evidence. Now all that the applicant did in this case when he proceeded to discharge the onus which was upon him to show that the District Magistrate was acting mala fide was, apart from the assertions of such mala fides, to file his own affidavit upon two facts; firstly, that there were no agricultural labourers in the city of Ahmedabad, and, secondly, that he as a matter of fact had no followers and associates; and the learned Counsel who appears on his behalf points out to us that, even though he filed an affidavit on these two points, there never has been any counter affidavit on behalf of the District Magistrate. Now it is quite true that in the affidavits which have been filed on behalf of the District Magistrate there is no mention of the existence of agricultural labourers in Ahmedabad or of the fact that as a matter of fact the applicant has friends and followers or associates; and we do not see why, if the original order is in the opinion of the authority who issued it a valid order, valid that is because whatever the applicant might have said, the detaining authority even now finds that it was a good order, the applicant having incited the agricultural labourers and having as a matter of fact incited his followers or associates in the manner mentioned in the grounds, no affidavits should have been filed on behalf of the District Magistrate to controvert the allegations made in the application and the affidavit of the applicant. But it is not as if in this case no affidavit has been filed on behalf of the District Magistrate. Affidavits have been filed both by the District Magistrate who made the order and the District Magistrate who subsequently furnished the grounds. The state of mind of a person who makes an order is pre-eminently a fact within his own knowledge; and upon this fact the District Magistrate says that as a matter fact there was material before him upon which he was satisfied in effect that the applicant was inciting agricultural labourers to resort to violence against landlords, and that he was also inciting his associates or followers to form an unlawful army. But the matter does not even rest there. The grounds in this case were subsequently furnished by the District Magistrate who succeeded the Magistrate who made the order. The grounds obviously were furnished from the papers which had been left by the previous District Magistrate, and even that District Magistrate says that he found from those papers that there were before the District Magistrate who made the order, materials which would show that the applicant was acting in a manner prejudicial to the public safety and the maintenance of public order. In our view, therefore, the mere fact that the applicant has filed his own affidavit saying that there were no agricultural labourers in Ahmedabad and saying also that he has no followers or associates is not enough to discharge the heavy burden upon him that the order was passed mala fide or with an ulterior motive.

12. Some argument has been addressed to us with regard to Ahmedabad being an industrial town with the result that there are no lands within the municipal area of the city of Ahmedabad which may be used for agricultural purposes; and the learned Counsel who appears on behalf of the applicant says that looking to the nature of the town of Ahmedabad which is an industrial town people will find it extremely difficult to keep their lands in use for agricultural purposes when there must have been great demand for sites for building and that we should have no difficulty whatsoever in accepting the affidavit which has been filed on behalf of the applicant that there are no agricultural labourers in the city of Ahmedabad as true. We see no reason, however, in spite of the character of the city of Ahmedabad, to suppose that there are no agricultural labourers in the city of Ahmedabad. It is possible that the city of Ahmedabad which formerly probably occupied a smaller area, has now grown up to a very large extent. We think it is possible that it has grown to such an extent that it may not be possible to find a single field within the radius of 7 or 8 miles from the centre of the town. We have no evidence upon the point, but we will assume for the purposes of argument that that is true. It is not contended, however, that there are no fields beyond this radius. It would be very difficult for a man living in the centre of the town to travel to his land each day over a distance of 7 or 8 miles. We can even understand that there could not be a large number of agricultural labourers living in the heart of Ahmedabad. But we cannot understand why on the fringe of the town of Ahmedabad there should not be living people who cultivate the lands which are outside; and, as we cannot understand that, we are not prepared to say that the applicant has discharged his burden by simply saying on affidavit that there were no agricultural labourers in the town of Ahmedabad whatever the District Magistrate's order may have said; and when it comes to the question of the followers and associates, one can see very easily the danger of relying in such matters upon the uncorroborated affidavit of a person who is after all interested in securing that he will escape detention if he could possibly do so. The applicant in this case says that he has no followers. The applicant is the Secretary of the Kisan Sabha. It is not in dispute that as a matter of fact the Kisan Sabha has got a large number of members. But even so, it is contended that the applicant has no followers for the reason, in the first instance, that the Kisan Sabha has not got any member in the town of Ahmedabad. It has got to be seen, however, that the affidavit which the applicant has filed does not say that he has no followers or associates in the town of Ahmedabad. In the second instance, it is contended that, even though there may be members of the Kisan Sabha, outside they are not followers of the applicant, they are the followers of the leaders of the Kisan Sabha of all India. We shall presume for the purposes of argument that this is a correct statement. But all the same it is very difficult to believe that the applicant not only has no followers but that he has not even associates. The Kisan Sabha of which the applicant is the Secretary has admittedly got its headquarters -in the city of Ahmedabad. He works there; an associate is a person with whom one associates. He is not as thick with the associate as friends generally are. But all the same all that is necessary is that he should have associated with other persons, and it seems to us difficult to believe that the applicant does not associate with other persons in the Ahmedabad city where he works.

13. In our view neither this statement nor anything which has been pointed out on behalf of the application by his learned Counsel is sufficient to show that the District Magistrate had not got the state of mind which it is necessary he should have before he makes an order under Section 2 of the Act. This of course has no reference to the other contention which has been made before us; and that is, that the District Magistrate has not applied his mind to the question, and that the grounds which have been supplied are vague and consequently there has been a breach of the mandatory provisions of Section 3 of Act VI of 1947.

14. Taking up now the first contention with regard to the application of the mind, though in part it may be taken to be really a question of the District Magistrate's satisfaction, here again we have the affidavit of Mr. Modi that he had applied his mind to the question on the materials which were supplied to him, and that he came to the conclusion that the applicant was acting in a manner prejudicial to the public safety and the maintenance of public order in the city of Ahmedabad, and it is corroborated by the affidavit of Mr. Damry who supplied the grounds from the papers which were left and who says that the papers disclose grounds upon which Mr. Modi could be satisfied. He could not say anything further, because the satisfaction was not his. But if the affidavits of these two persons are accepted, there can be no doubt that the District Magistrate applied his mind to the case before he made the order of April 2, 1948.

15. Coming next to the question as to whether the grounds are vague, and whether consequently the applicant is entitled to be released from detention, what Section 3 of the Public Security Measures Act requires is that when an order for detention of a person is made, the Provincial Government or a District Magistrate, if he is authorised in that behalf, should supply to the detenu the grounds on which the order has been made but without disclosing the facts which it considers against the public interest to disclose, and, secondly, such other particulars as are in its opinion sufficient to enable him to make a representation. The section speaks of two things, grounds and particulars and has been modelled to some extent on Regulation 18B of the Defence (General) Regulations, 1939, of England. But there is this difference between the wording of that Regulation and the Bombay Public Security Measures Act. Leaving aside for the moment that the grounds are to be furnished by the Home Secretary who makes the order under the statute, Sub-section (5) of Regulation 18B says:

It shall be the duty of the Chairman to inform the objector of the grounds on which the order has been made against him and to furnish him with such particulars as are in the opinion of the Chairman sufficient to enable him to present his case.

The first part, that is the grounds on which the order has been made against him is the same. But whereas the Act specifically mentions that the authority which makes the order is entitled to keep back from the detenu such facts as it is not in the interest of the public to divulge, the Regulation leaves that thing to be done under the provisions of the ordinary law. This is quite clear from the discussion which will be found upon this point in the case of Liversidge v. Sir John Anderson [1942] A.C. 206 The second point of difference is that, whereas the Regulation says that the Chairman was to supply the detenu, besides the grounds, with such particulars as are in the opinion of the Chairman sufficient to enable him to present his case, the Act puts in a word between 'such' and 'particulars', namely, the 'other'. Now what sort of ground it has been considered sufficient for the detaining authority to supply under the Regulations may be found again at p. 240 of the report of Liversidge's case. The grounds which were supplied to Benjamin Greene who was detained under the Regulations are as follows:

Home Office, Advisory Committee, 6 Burlington Gardens, W.I., Reasons for order under Defence Regulation 18B in the case of Benjamin Greene. The order under Defence Regulation 18B was made against you for the following reasons. The Secretary of State has reasonable cause to believe that you have been recently concerned in acts prejudicial to the public safety and the defence of the realm and in the preparation and instigation of such acts and that it is necessary to exercise control over you.

Then follow what are called particulars. It does not appear from the report of the Liversidge's case or the case of Greene v. Secretary of State for Home Affairs [1942] A.C. 284 that there was any challenge that the grounds which were furnished in that case were not such grounds as were intended by Sub-section (5) of Regulation 18B, and it may therefore be taken that the grounds as a matter of fact were valid grounds for the Chairman to supply to the detenu. One feature which may then be noticed is that as a matter of fact beyond telling the applicant as to which of the clauses of the section under which the order was made the grounds do not disclose anything at all to the detenu. It is true that after mentioning that he has been recently concerned in acts prejudicial to the public safety and the defence of the realm, it goes on to say that he was also concerned with the preparation of such acts, but that does not afford any more illumination of the facts upon which the conclusion was based. It seems to have been taken therefore as sufficient compliance with Sub-section (5) of the Regulation that the detenu was told as to grounds, the particular clause of the section under which the action was being taken. It is just as well to remember that under the English Regulation action could be taken against the detenu owing to several grounds, for example, that he was a person of hostile origin, secondly, upon the ground that he was concerned in an act prejudicial to the public safety and so on, and it seems to us evident that if the detenu was told which of those things the Secretary of State was satisfied about; that was regarded as sufficient compliance. But so far as the Bombay Public Security Measures Act is concerned, this interpretation has not been acceptable to any of the Courts, and the reason for that seems to be the word 'other' which has been introduced between 'such' and 'particulars'. It has been pointed out before now that even though the Bombay Public Security Measures Act uses the words grounds and particulars, except perhaps that the grounds are more general in their character and the particulars by their very nature would have to be particular, there is not much difference. It has therefore been held that it is not sufficient compliance with Section 3 of the Bombay Public Security Measures Act that there should be in the grounds which have been furnished to the detenu a reproduction of the words of the section like 'you are acting in a manner prejudicial to the public safety and the maintenance of public order'. The use of the word 'other' shows that the grounds should also include particulars which the Legislature thought the detenu should have in order that he should be able to make a representation to the proper authority, and consequently the grounds have to be something more than the mere reproduction of the words of the section. There has been considerable discussion before us as in other cases as to what sort of grounds it would be sufficient and necessary for the detaining authority to supply; and questions have been raised whether the grounds should or should not be vague, whether the grounds should or should not be precise. Two sorts of arguments were advanced before us. It was contended that the grounds are supplied for two reasons, firstly, in order that the detenu may have a sufficient opportunity to make his representation, sufficient that is not only in duration of time but sufficient because of his having been apprised of what was found against him, and, secondly, because they should be a safeguard against the abuse of power. The particulars have to be supplied, but only those particulars may be supplied which are in the opinion of the detaining authority sufficient to enable the detenu to make a representation. The only compulsion is that the grounds must be disclosed. This is, therefore, the only safeguard in regard to the liberty of the subject and consequently the grounds must be precise, and they must not be vague. Now, one can understand an argument that as one of the objects of supplying the detenu the grounds is that he should be able to make a representation to the detaining authority, the grounds must tell him something. If they do not tell the detenu anything at all, then the requirements of Section 3 are not complied with. If, for example, in spite of the duty laid upon the detaining authority no grounds whatsoever were supplied under Section 3, then that could not be compliance with the provisions of Section 3 and the detenu would be entitled to be released. If, on the other hand, a paper is served upon the detenu which says that you have been detained upon the following grounds and thereafter mentions nothing or put in crosses, there has been omission to supply the grounds. But the learned Counsel who appears on behalf of the applicant wants us to go much further than this. We do not wish to say that immediately we go beyond this there has been compliance of the section. But the extent to which the learned Counsel wants us to go is this. He says 'In case I am given certain grounds but at the same time I am not given grounds in such detail that it is impossible for me to make any other defence than that I am not innocent then there is failure to comply with the provisions of Section 3'. Now, the grounds may become insufficiently precise for various reasons. Some of the reasons one can find in the Act itself. It says that even though there is the duty upon the detaining authority to supply the grounds to the detenu, the detaining authority may not at the same time disclose facts which it considers against the public interest to disclose. Even if the Act is not to be read as if there was prohibition against disclosing facts, the discretion to disclose facts may have by its exercise rendered the grounds vague. In the second instance, the section when saying that particulars should be given says that such particulars should be given as are in the opinion of the detaining authority sufficient to enable the detenu to make a representation. Now, it is obvious that if the section itself contemplated that certain things may be omitted then if it could be said that the grounds are not as precise as they might have been because of such omission, then there would not be an adequate ground for releasing the detenu. It is true that when the detaining authority furnishes the grounds to the detenu, it must, besides stating under which clause action has been taken, also give, what may be called, the conclusions of fact upon which the satisfaction of its mind as mentioned in the section is derived. Suppose the conclusion of fact to which it has arrived is that the detenu has at a specified time and at a specified place made a speech in which he incited the audience to form, what may be called, a private army; if subsequently the detaining authority thought that it would be against the public interest to disclose either time or place it can be said that the ground is not as precise as it should be. It would be possible to characterise the ground to that extent as a vague ground. And the grounds will be more vague as more particulars are dropped. If the grounds were to give the names of every one in the audience, it would be a more precise ground. If it gave no names at all but merely said that the persons were members of a particular body, it will be less precise and immediately any such particulars are dropped from the grounds we could conceive of the detenu being handicapped in making his representation. If, for example, the detenu were told that he at a particular time and place made a speech upon which the conclusion of fact of the District Magistrate was based, he may be able to give proof that at that time and place he was elsewhere and one can conceive of cases in which he is deprived of an opportunity of adducing before the District Magistrate a complete proof of his innocence if the time and place are dropped, and if we are to accept as a test in determining whether the grounds which are to be supplied to the detenu are or are not sufficient for the purpose of Section 3 whether the detenu is handicapped in making the representation then that part of the section which provides for the keeping back of facts which it is necessary in the public interest not to disclose may be rendered nugatory. We do not think therefore that it is a satisfactory test whether the withholding of facts or withholding of details has or has not made it difficult for the detenu to make his defence.

16. Coming next to the second contention which has been urged as to why the grounds should be precise, that that is the only safeguard which has been provided to the detenu, one can easily understand that, if an Act provides that the grounds must be supplied to the detenu, though it may be after the detention order is made, the detaining authority has of necessity to be careful. The grounds would undoubtedly go into the possession of the detenu, the detenu may take up the matter to Court. The fact that the grounds have to be mentioned would undoubtedly constitute a check upon the detaining authority. But all the same it does not appear to us that the fact that one possible object of the Legislature in providing that the grounds should be given to the detenu after detention was to keep a check upon any carelessness or otherwise is not determinative of the nature of the grounds which can be called adequate for the purpose of the section. We do not wish to do what the Legislature has apparently deliberately not done, that is qualified the words grounds or particulars by an adjective like precise, But what we think would be a sufficient test in such cases is this. If the detaining authority gives to the detenu its conclusions of' fact and such particulars as are in its opinion sufficient to make a representation and it could be said from the grounds which are given and the particulars which are furnished that the order for the detention of the detenu could reasonably be made, then there has been compliance with the mandatory provisions of Section 3 of the Act. We do not wish to say that this is as a matter of fact a necessary test. But there must be a disclosure to the detenu of the conclusions of fact of the detaining authority, and if the grounds together with such particulars as are furnished are sufficient to show to the Court that the detaining authority could reasonably have come to the conclusion that the detenu was acting in a manner prejudicial either to the public peace or the maintenance of public order or the tranquillity of the area in respect of which the order has been made, then the grounds cannot be said to be bad.

17. Now what the grounds said in this case to the applicant was that he had incited agricultural labourers to resort to violence against landlords. He had also incited his associates and followers to form an unlawful army, by which we understand a private army. No other particulars have been given as to whether he incited agricultural labourers by addressing them at a meeting or by writing letters. Similarly there are no details furnished as to the time and place or the manner in which the associates and followers of the applicant were incited to form an. unlawful army. But all the same if we start with a presumption, as we must, that the District Magistrate came to the conclusion that the applicant has done these two things, then we have no doubt whatsoever that the detaining authority may reasonably have been satisfied that the applicant was acting in a manner prejudicial to the public safety or the maintenance of public order or the tranquillity of the city of Ahmedabad. It is true, as I have already mentioned, that in this case no other details have been furnished, and the applicant may be handicapped to this extent that in any representation which he may make he may be restricted to denying the allegations and relying on, what may be called, evidence of good character, for example, he has mentioned in his application that he has been doing several good things in the interest of Kisan Sabha and in the interest of general public also. But then the Act contemplates that that may sometimes happen. We have got to remember that when particulars as distinct from grounds are to be given, the only requirement which the section contemplates is that the particulars should be, in the opinion of the detaining authority, sufficient to enable the detenu to make a representation. Whenever the words 'in their opinion' are used, that means if subsequently a point as to their sufficiency is raised before the Court, the Court must decline to go into that question. We do not intend to suggest that a fetish should be made of what may be called the grounds of public interest. The statute with which we are concerned was passed not in times of emergency of war but it was passed in peaceful times. What particulars may be furnished even in war times in England can again be seen from the case of Liversidge v. Sir John Anderson (p. 241). I have already mentioned that the grounds as distinct from particulars were confined to the recital of the appropriate clauses of the section. But when particulars were furnished, they constituted six paragraphs. Reference was made to the detenu being concerned in the management and control of two named organizations and of the nature of speeches and writings of his, they also stated that he was privy to the activities of a named person in the publication of pro-German propaganda in a named periodical. They also stated that he was subsequently to the outbreak of war communicating with persons in Germany concerned in the Government of Germany, that he was desirous of establishing a national socialist regime in Great Britain with the assistance, if received, of German armed forces, and it was also stated that he freely associated with persons of German nationality whom the Home Secretary had reason to believe were agents of German Government. The particulars supplied in that case show that the authority which supplied them was actuated with the spirit of the free institutions in which it was nurtured and did not choose to take shelter under the letter of law when the grounds came to be supplied. But inasmuch as it is ultimately left to the discretion of the detaining authority to supply such particulars and grounds as are in the opinion of the detaining authority sufficient to enable the detenu to make a representation, we are afraid it is not possible to subject the particulars to any objective test of sufficiency.

18. I will now go to the last ground which has been made on behalf of the applicant, and that is this that there has been a failure to comply with the provisions of Section 3 inasmuch as the detaining authority did not tell the detenu that he had a right to make a representation not only to it but to the Provincial Government also, Now Section 3 of the Bombay Public Security Measures Act (Bom VI of 1947) says that when an order of detention is made in respect of any person, the Provincial Government have among other things to tell the detenu that he has a right to make a representation to the Provincial Government and afford an earliest opportunity of doing so. The Act contemplated ab initio that the powers of the Provincial Government under Section 2 may be delegated under Section 21 to a Deputy Commissioner of Police in Greater Bombay and District Magistrates elsewhere. But one thing which has to be noticed is that neither Section 3 nor Section 21 provides that where the powers and duties imposed upon Government are in pursuance of Section 21 delegated to an officer, the right which the detenu had would be to make a representation, not to the Provincial Government but to such officer. The learned Government Pleader who appears for the Crown says in this case that it is true that there is no such provision made under Section 3 or Section 21 of the Bombay Public Security Measures Act, but inasmuch as the powers have been delegated to the District Magistrates and the duty of supplying grounds and supplying particulars has also been laid upon them, it could not have been contemplated that the representation which was to be made should be made to the Provincial Government rather than to the District Magistrate or the authority which made the detention. He says that the grounds upon which the detention was made was a matter exclusively within the knowledge of the District Magistrate and he would therefore be an appropriate person to consider any representation which might be made by the detenu; and consequently, when the powers have been delegated to a District Magistrate, Section 3 must be read as if for the words 'Provincial Government' where they occur in the section after the words 'to make a representation' the words 'detaining authority' were substituted. Now it has to be remembered that even though Section 21 permits delegation of both powers as well as duties, and even though the power under Section 4 has been delegated to the detaining authority with the result that the detenu has. got a right to make a representation to it whether he has got or not a right to make a representation to the Provincial Government, inasmuch as the original section provided that after the order of detention was made the detenu should be given grounds and particulars in order that he should make a representation to the Provincial Government and required that he should be informed of the rights he has notwithstanding the delegation such a right. It is not as if the delegation which has been effected deprives the Provincial Government of its powers. On the other hand the order which 1 quoted above shows quite clearly that the powers which have been conferred under Section 3 may in spite of the delegation still be used by the Provincial Government. Nor can the fact that the grounds of detention were the grounds of the satisfaction of the detaining authority create a difficulty because Government can always obtain from it the grounds as well as the material.

19. It is said, however, that in case it is held that the detenu could make a representation both to the detaining authority and the Provincial Government, the two authorities may come to a contrary conclusion; and it is said that we should not read the section in the way in which the applicant wants us to read, for the result of saying so would be to give rise to two contrary decisions. Now we will assume for the purpose of argument that the detenu makes two representations, one to the detaining authority and another to the Provincial Government. If the Provincial Government wishes to exercise its powers which it still has it would, presumably being aware of the dictum that when a delegating authority embarks upon exercise of the powers which have been delegated the authority to whom the powers are delegated ceases to have jurisdiction, communicate to the latter that it was considering the representation. It may of course happen that the Provincial Government may fail to do so, and we will assume in that case that the detaining authority either comes to one or other of the conclusions. That would not affect, in case the detaining authority has embarked upon the exercise of the powers, the fact that whatever order was subsequently passed by the authority to which the powers were delegated would be without jurisdiction. But assuming for the purposes of argument that the Provincial Government did not embark upon the exercise of the powers even though a representation was made to it, then the detaining authority may release the detenu; after it has released the detenu the Provincial Government has nothing further to do. If, on the other hand, the detaining authority has confirmed the original order which was made, it will be open to the Provincial Government after considering the representation to pass orders either that the detenu should be released or that he should continue to be detained. In our view reading the words in Section 3 in the manner in which the applicant wants us to do would not lead to any such untoward result as the learned Government Pleader argues before us will follow; and inasmuch as we must read the words 'Provincial Government' in Section 3 in the usual ordinary manner, we must hold that notwithstanding any delegation the detenu is given a right to make a representation to the Provincial Government. It has got to be remembered that when construing the section we are not entitled to read for the words 'Provincial Government' the words 'District Magistrate or such other detaining authority as has issued the order' wherever the words occur. It is true that Section 3 does not give as a matter of fact powers but imposes duties and it must be conceded that the obligation mentioned therein is laid upon the detaining authority because of the notification. But where Section 3 uses the words 'representation to the Provincial Government', there is no reference either to any powers conferred on the Provincial Government or to any duties laid upon it and consequently the notification by which powers and duties are delegated to the authorities will not enable us to read for the words Provincial Government in the phrase 'representation to Provincial Government,' the detaining authority. There was consequently a failure to tell the applicant that he had a right to make representation to the Provincial Government. The learned Government Pleader argues before us that the grounds which were communicated to the applicant told the applicant that he was entitled to make a representation and it also told him that the representation was to be sent to the District Magistrate. Nothing else was communicated to the applicant, and he says, therefore, at any rate, the applicant was not misled in believing that the only representation which could be made was to the District Magistrate. That may be, but we cannot say therefrom that there has been compliance with the mandatory provisions of Section 3 to tell a detenu that he has a right to make a representation to the Provincial Government. It is true that the grounds refer to Section 3, and Section 3 makes a reference to the right of the detenu to make a representation. But we are not prepared to say that because of that it can be said that the District Magistrate told the applicant that he had a right to make a representation to the Provincial Government.

20. There has been, therefore, a defect in the procedure of the District Magistrate; and the only question which remains is what is the effect of this defective procedure. It is contended on behalf of the applicant that inasmuch as this duty was laid upon the District Magistrate in the interests of the detenu we must construe the failure to comply with the mandatory provisions of law as an illegality which affects the whole procedure and consequently affects also the present detention of the applicant. Now, every failure to comply with a mandatory provision of law is not an illegality. It certainly is an irregularity, and the question whether such a failure will vitiate the whole proceedings will depend upon the character of the failure, the prejudice that it might have caused and the effect upon any order which has been passed after the causing of the prejudice. Now, in this case, the failure was in respect of telling the applicant that he could make a representation to the Provincial Government. It cannot be said that this did not cause any prejudice to the applicant, because for all we know the applicant may have been ignorant of his right and may not have made any representation to the Provincial Government. But the question is, did this failure affect the order for detention under which the applicant has now been held under detention? If it did not do so, howsoever deplorable the failure, it cannot be said that the detention of the applicant is bad. Otherwise the applicant is entitled to be released.

21. Now the learned Counsel who appears on behalf of the applicant says that as a matter of fact this failure has resulted in his detention without the Provincial Government applying its mind to the case. But that does not affect either the original order which was passed by the District Magistrate under Section 2 nor it can be said to have affected the final order which he passed under Section 4. To the extent that the original order under Section 2 partakes of the nature of a temporary order because that order has ultimately to be confirmed, set aside, or modified after a representation is made to the detaining authority or the Provincial Government under the provisions of Section 3 it can be characterized as an interim order, see In re Krishnaji Gopal Brahme (1947) 50 Bom. L.R. 175 and the view which was taken in that case was that where there has been a failure to supply such grounds as must be supplied under the provisions of Section 3 and the ultimate order which was passed under Section 4 was bad, because it was passed without communicating to the detenu proper grounds which prevented the detenu from making a representation after proper grounds were supplied to him.

22. It is not necessary in this case to go into the question as to whether when the grounds which are supplied are not such as are referred to in Section 3 the detention is bad because the subsequent order was passed without giving the detenu proper grounds and prejudicing him in the matter of his representation. I shall assume for the purposes of this argument that the order which is passed under Section 4 is a final order, the order under Section 2 being an interim order. We do not know in this case whether the applicant made any representation to the District Magistrate who was the detaining authority or not. Either he did or he did not. If he did presumably the original order has been confirmed. But can we say that the order is bad? The applicant has not made a representation to the Provincial Government because there has been a failure to tell him that he has also got a right to apply to the Provincial Government. We fail to understand how it can be said that the order of the District Magistrate is bad because of the failure. The applicant has still got a right to approach the Provincial Government and presumably there is nothing to prevent the Provincial Government from exercising its powers. If the failure had the result of affecting the representation if any which was made by the applicant to the District Magistrate which had to be considered before an order under Section 4 was made, then it might be said that the failure has prejudiced the applicant, and the order which was passed after the failure is a bad order. There being no such failure, in our view neither the original order, if that is the order under which he is detained, because in the absence of representation the order made under Section 2 would be a final order, nor the final order by the detaining authority after hearing his representation if it was made, is bad.

23. It remains to make reference to two judgments to which our attention has been drawn for the disposal of the present case. Out of that one judgment, namely that In re Chandrabhai Kalidas Bhatt (1948) Crim. Appl. 920 of 1948, decided by Chagla C.J. and Gajendragadkar J., on June 15, 1948 (Unrep.) need not detain us long. That was a case in which the detenu was furnished with the grounds, two of which are common to that case and the present case. The third ground which was given to the detenu was that the detaining authority was satisfied that he was collecting arms. The learned Judges who disposed of the application had cause to mention the other judgment, namely, the judgment in In re Dinkar Krishnalal Mehta (1948) Crim Appli. 848 of 1948. decided by Coyajee and Bhagwati JJ., on June 7, 1948 (Unrep.), and they referred to it in these words:-

We would have been most reluctant to differ from the view taken by that bench if in our opinion the principle of that decision applied to the facts of this case. But before us we have a ground which is much more definite and explicit than the ground that Mr. Justice Coyajee and Mr. Justice Bhagwati had before them. Because rightly or wrongly the detenu is charged with collecting arms unlawfully with the object of raising a private army.

It is obvious, therefore, that the learned Judges did not have specially to consider the question as to whether an order which was based only upon two grounds which had been furnished to the detenu in this case would be a valid order.

24. Then I come to the order in In re Dinkar Krishnalal Mehta. Now, I have already mentioned in this case that upon the evidence which has been furnished to us we are not satisfied that there are no agricultural labourers in the city of Ahmedabad. The first judgment, the judgment in Chandrabhai Kalidas Bhatt, seems to proceed upon a finding that as a matter of fact there are no agricultural labourers in the city of Ahmedabad. The learned Government Pleader who appears for the Crown suggests to us that this finding is based not upon evidence but upon certain knowledge of the conditions of things in the city of Ahmedabad, which had been imported by one of the Judges in the judgment. Now, we are not sitting in appeal over that judgment and it is not therefore for us to investigate upon what evidence the findings of fact upon which the order was based was arrived at. We are reluctant to believe that any personal knowledge was imported in the judgment by any of the Judges. If it has been so imported, it was not proper to do so. But, on the other hand, if it was derived from the evidence, then it was open to the learned Judges upon the evidence in that case to come to the conclusion that there were no agricultural labourers in Ahmedabad. In that case a question might arise as to whether the order of the District Magistrate can be said to be mala fide or passed with an ulterior motive. No question of the order being bad because there were no agricultural labourers in Ahmedabad can possibly arise, because the only condition precedent which has been laid down for the validity of the order is the satisfaction of the District Magistrate, and if the District Magistrate was satisfied, then the order cannot be challenged subsequently on the ground that the evidence upon which it was based was false. Undoubtedly it was open to the learned Judges in that case because they came to the conclusion upon the evidence that there were no agricultural labourers in Ahmedabad to take evidence of ulterior motive or in the alternative of failure to exercise sufficient care or to apply the mind. In that case it was necessary for the District Magistrate who made the order to satisfy the Court that, notwithstanding the fact that there were no agricultural labourers in Ahmedabad, the order was passed in circumstances in which it could be said that it was a bona fide order. It is true that if we peruse the judgment it does not seem to proceed upon the footing that the fact there were no agricultural labourers in Ahmedabad will go to show that the order was passed mala fide or with an ulterior motive or without taking sufficient care, and if the learned Judges intended to say that whenever it is found that one or more of the facts upon which the order is based is not true it is open to the Court to say that the order was not a justifiable order to pass, we must express our dissent from that view. I have, already mentioned that the question of satisfaction of the District Magistrate is a question of fact, but still it is a subjective consideration and not an objective consideration, and whenever subsequently an order is challenged before a Court, the Court is only concerned with the question as to whether the District Magistrate was satisfied. The question may involve in a suitable case an investigation whether sufficient care was or was not exercised, but it is not open to the Court to sit in appeal over an order which has been passed by a District Magistrate, much less it is open to it to consider circumstances are made out before it in which it would have passed the order or take evidence as to the conclusion of the fact found by the District Magistrate. This view has been established so well that it is not really necessary to mention any authority in support of it, but if any authority is needed then it would be found in Stuart v. Anderson and Morrison (1941) 165 L.T. 120 referred to in Liversidge v. Sir John Anderson [1942] A.C. 206 A similar view was also expressed in a full bench decision of this Court which is to be found in In re Rajdhar Kalu Patil (1947) 50 Bom. L.R. 183

25. The applicant therefore fails and the rule must therefore be discharged.

Dixit, J.

26. I agree. With regard to the last contention taken on behalf of the applicant, I desire to add a few words. That contention is that since the detenu was not informed of his right to make a representation to the Provincial Government the detention order is bad. It is manifest from Section 3 that the detaining authority is required to communicate to the person affected by the order the grounds upon which the order has been made and also to inform the detenu of his right to make a representation in order to afford him an earliest opportunity of doing so.

27. Now, the foundation of the detention order is the existence of a state of mind, and that state of mind has reference to the grounds on which the order is based. It is clear, therefore, that the grounds of an order are inseparable from the order itself. If, therefore, the grounds are vague, the order is bad. If the grounds are outside the ambit of the Act, the order is equally bad; and if no grounds are furnished in support of the detention order, the order is likewise bad. But it cannot be said of the duty on the part of the detaining authority to inform the detenu of his right to approach the Provincial Government that it has any reference to the state of mind of the detaining authority. It is separable from the order; and that being so, the failure on the part of the detaining authority to inform the detenu of his right to make a representation will not and should not affect the validity of the order. This view seems to be in accord with the principle enunciated by Maxwell on the Interpretation of Statutes at page 321, 8th edition, which is to the following effect:-

The reports are full of cases dealing with statutory provisions which are devoid of indication of intention regarding the effect of non-compliance with them. In some of them the conditions, forms, or other attendant circumstances, prescribed by the statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its validity: In others such prescriptions have been considered as merely directory, the neglect of which did not affect its validity, or involve any other consequence than a liability to a penalty, if any were imposed, for breach of the enactment. The propriety, indeed, of ever treating the provisions of any statute in the latter manner has been sometimes questioned, but it is justifiable in principle as well as abundantly established by numerous authorities.

It seems to me, therefore, that the neglect or the omission on the part of the detaining authority to inform the detenu of his right to make a representation to the Provincial Government does not invalidate the order. At the most, it can be said to be an irregularity. This latter view has been taken in a judgment of this Court in In re A.S.R. Chari (1948) Crim. Appln. 921 of 1948, decided by Chagla C.J. and Gajendragadkar JJ., on June 24, 1948 (Unrep.) and I think that view is correct.

Jahagirdar, J.

28. I agree.


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