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Abdul Ghani Vs. State of Karnataka and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1975CriLJ475
AppellantAbdul Ghani
RespondentState of Karnataka and anr.
Excerpt:
.....maintained that as one of the grounds on which the detention of the petitioner was ordered by the .district magistrate was non-existent, the order of detention was bad in law. 97 of 1966. 8. it is well-settled that when a conviction of an accused is set aside in appeal, it (the conviction) is wiped out and that thereafter the accused should be regarded as if he had not been so convicted. state of west bengal 1974crilj397 that even an unsuccessful judicial trial or proceeding would not operate as a bar to a detention order or render it mala fide. 11. in the light of the aforesaid rulings of the supreme court, there can be no doubt that in spite of acquittal of an accused in a criminal case, a valid order of detention can be based on the acts and incidents in respect of which he was..........examiner. but, reading ground no. 3 as a whole, there can be no doubt that it is founded on the fact of conviction of the petitioner. this inference is strengthened by what the respondents themselves have said in the latter part of para. 5 of the statement of objection, which reads :it is further submitted that the fact of his conviction in c.c. no. 83f2/3 of 1966 does not cease to be available for being taken into consideration as one of the factors supporting the inference drawn against the petitioner, the subsequent acquittal by the learned sessions judge giving the petitioner the benefit of doubt does not in any way affect the relevancy of his conviction by the trial court being taken into consideration. the fact of his conviction continues to be available for being taken into.....
Judgment:
ORDER

Chandrashekhar, J.

1. In this petition under Article 226 of the Constitution, read with Section 491, Cr. P. C, the petitioner has challenged his detention under the provisions of the Maintenance of Internal Security Act ,1971, (Central Act 26 of 1971), (hereinafter referred to as the 'Act').

2. Most of the material facts are not in dispute. The District Magistrate, Gulbarga, {respondent 2 herein), by his order dated 27-8-1973 (Ext. A); made in exercise of the powers conferred by subsection (2) of Section 3 of the Act, directed that the petitioner be detained in the Central Jail, Bellary. On the same day, a communication (Ext. B) setting out the grounds on which the detention of the petitioner was ordered, was addressed to him. On 3-9-1973, the District Magistrate reported to the State Government the fact of his having made the order. Exhibit A, By its order dated 7-9-1973 (Ext. C). the Government approved the aforesaid order of the District Magistrate. On 13-9-1973 the petitioner made a representation to the Government against that order. The State Government referred his case to the Advisory Board which gave a personal hearing to him and after considering his representation, reported to the Government that there was sufficient cause for his detention. After considering that report, the Government, by its order dated 21-11-1973 (Ext. F) confirmed his detention and directed continuance thereof up to 26-8-1974.

3. Of the several contentions urged by Mr. y, Krishna Murthy, learned counsel for the petitioner, it is sufficient to consider only one. He argued that in the grounds of detention furnished to the petitioner under Section i8 of the Act, there was a serious misstatement that he was convicted in Criminal Case No. 832/3 of 1966 by the Court of the Munsiff Magistrate, Gulbarga and sentenced to a fine of Us, 100 and in default, one month's simple imprisonment, though as a matter of fact, that conviction was set aside in appeal. Mr. Krishna Murthy maintained that as one of the grounds on which the detention of the petitioner was ordered by the .District Magistrate was non-existent, the order of detention was bad in law.

4. To appreciate the above contention of Mr. Krishna Murthy, it is necessary to set out the contents of the communication dated 27-6-1973 (Ext. B) addressed to the petitioner stating the grounds on which his detention was ordered. Therein it was stated that he was engaged in smuggling foodgrains from Mysore State to Maharashtra State since the year 1&&6. An instance of smuggling by him on 20-6-1966 and his being convicted therefor were stated as ground No. 1. In ground No. 2 it was stated that he was convicted and sentenced to pay a fine of .Rs 25, under the Southern States (Regulation of Export of Rice) Order, 1964. Ground No, 2 reads:

You were convicted in Case No, 832/ 3/1966 by the Munsiff Magistrate Court, Gulbarga, under Sections 108 and 121 of the Indian Railways Act for a fine of Rs. 100 and in default one month's simple imprisonment vide judgment dated 26-10-1966. In this case, the Police had registered a case in Cr. No. 130/66 in the Wadi Police Station. The charge against you was that on 6-8-1966, at about 3-20 a.m. you were found travelling in 22i3^Up Secunderabad Bombay Express train with some rice bundles. When the Ticket Examiner asked for the explanation you had none. Later, the Munsiff Magistrate Court found you guilty.

5. In ground No. 4 it was stated, inter alia, that on 16-4-1973 he was found in a railway compartment with many half hags of rice and that the police had placed a charge-sheet against him for contravention of the Southern States (Regulation of Export of Rice) Order, 1964.

6. In ground No. 5 it was stated that the enquiries made by the District Magistrate at Gangapur Railway Station revealed that the petitioner was engaged in smuggling.

7. It is not disputed that the conviction of the petitioner referred to in ground No. 3, was set aside by the Sessions Judge, Gulbarga in Criminal Appeal No. 97 of 1966.

8. It is well-settled that when a conviction of an accused is set aside in appeal, it (the conviction) is wiped out and that thereafter the accused should be regarded as if he had not been so convicted. Hence Mr. Krishna Murthy is justified in his criticism that taking into consideration such conviction, ignoring the subsequent acquittal in appeal, was misleading.

9. However, the learned Advocate-General, who appeared for the State of Karnataka and the District Magistrate, urged that the fact of acquittal of the petitioner in appeal, did not preclude the authorities from taking into consideration the acts or activities for which he was prosecuted, for the purpose of satisfying themselves whether he was likely to indulge in similar acts or activities in future. In support of this contention, the learned Advocate-General relied on the observations of the Supreme Court in Mohd. Salim Khan v. C.C. Bose : 1972CriLJ1020 and in Ramayan Harijan v. State of West Bengal : (1988)IILLJ423SC to the effect that the mere fact that a detenu was discharged in a criminal case, does not mean that a valid order of detention could not be passed against him in connection with those very incidents for which he was prosecuted.

10. The learned Advocate-General also relied on the observations of the Supreme Court in Mohd. Subrati v. State of West Bengal : 1974CriLJ397 that even an unsuccessful judicial trial or proceeding would not operate as a bar to a detention order or render it mala fide.

11. In the light of the aforesaid rulings of the Supreme Court, there can be no doubt that in spite of acquittal of an accused in a criminal case, a valid order of detention can be based on the acts and incidents in respect of which he was unsuccessfully prosecuted. But, in the present case, the question is whether the District Magistrate took into consideration the fact of the petitioner having been convicted in C, C. No. ,832/3 of 1966 or the activities or the incidents for which he was prosecuted, and ultimately acquitted in the appeal.

12. No doubt, in the latter part of ground No. 3 it is stated that the charge against the petitioner was that on 6-8-1966 he was found travelling in a train with some rice bundles and that he had no explanation, when confronted by the Ticket Examiner. But, reading ground No. 3 as a whole, there can be no doubt that it is founded on the fact of conviction of the petitioner. This inference is strengthened by what the respondents themselves have said in the latter part of para. 5 of the statement of objection, which reads :

It is further submitted that the fact of his conviction in C.C. No. 83f2/3 of 1966 does not cease to be available for being taken into consideration as one of the factors supporting the inference drawn against the petitioner, The subsequent acquittal by the learned Sessions Judge giving the petitioner the benefit of doubt does not in any way affect the relevancy of his conviction by the trial Court being taken into consideration. The fact of his conviction continues to be available for being taken into consideration notwithstanding his subsequent acquittal in appeal which was the result of the learned Judge's giving him the benefit of doubt.

13. Thus, it is clear what was taken into consideration by the District Magistrate in making the order of detention, was the fact of the petitioner being convicted in that case and not the acts or incidents for which he was prosecuted in that case.

14. Even so, the learned Advocate-General contended that the District Magistrate cannot be said to have based the order of detention of the petitioner on a non-existent ground. Elaborating his contention, the learned Advocate-General said that the ground on which an order of detention is made, should be distinguished from the particulars of facts on which that ground is based. According to the learned Advocate-General, there was only one ground on which the order of detention of the petitioner was made, namely, the ground that he was indulging in smuggling of rice and that the several instances of smuggling and conviction of the petitioner, were only particulars of facts on which that ground was based. Support for this view was sought to be derived from the (following observations of Kania, C, J. who spoke for the Court in State of Bombay v. Atma Ram AIR 1981 SC 157 at p, 161 : 52 Cri LJ 373 at p. 376: by their very nature their grounds are conclusions of facts and not a complete detailed recital of all the facts....

15. The following observations of B. P. Sinha, J. (as he then was), who spoke for the Court in Naresh Chandra v. State of West Bengal : 1959CriLJ1501 are also similar:. the grounds contemplated by Section 7 (of the Preventive Detention Act. 1950), namely, the conclusions of facts which have led to the passing of the order of detention, informing the detenu as to why he was being detained.

16. After referring to the above observations of Sinha, J., a Bench of this Court said thus in Ganapathi Pai v. District Magistrate, Mangalore, 1973 (2) Mys LJ 279 at p, 283 : 1974 Cri LJ 859 at page 861:.the grounds for making an order of detention which have to be communicated to the detenu as soon as may be, are the conclusions of facts and not a complete recital of all the relevant facts...

By perusing again the communication served on the detenu, we have no hesitation in holding that the three instances cited therein are not the 'grounds' for the detention. They are only the instances in support of the ground and the ground was that the detenu has been engaged in acts of smuggling rice.... This ground was the conclusion arrived at by the detaining authority not only on the three instances furnished to the accused but also on the reports of the Superintendent of Police of the District.

17. It was also argued by the learned Advocate-General that the fact of the conviction of the petitioner in the aforesaid case, was not proximate in point of time and was relied on merely as an instance of past activity and that the past activities of a person are relevant in considering whether he is likely to indulge in similar activities in future.

In Bhim Sen v. State of Punjab AIR 1991 SC 481 at p. 483 : 1952 Cri LJ 75 at p. 77, Kania, Section 4, who spoke for the Court, said 5

Instances of past activities are relevant to be considered in giving rise to the subjective mental conviction of the District Magistrate that the appellants were likely to indulge in objectionable activities.

18. There can be no doubt that the past activities of a person are relevant for & subjective satisfaction of the detaining authority that such person is likely to indulge in objectionable active ties in future also. However, if such past activities or incidents sought to be relied on by the detaining authority are them selves non-existent or substantially erroneous erroneous, the question Is whether the order of detention based upon such non-existent or substantially erroneous past activities or incidents, is vitiated.

19. For the purpose of this petition, it is not necessary to go into the question whether the conviction of the petitioner in the aforesaid case, formed a ground or was merely one of the particulars on which a ground or conclusion of facts was drawn by the District Magistrate. The fact of such conviction undoubtedly formed a part of the materials for the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner. Where the whole or a part of the materials on which an order of detention was based, was either nonexistent or substantially erroneous, what consequence would follow, has been settled by several decisions of the Supreme Court.

20. In Dwarka Das Bhatia v. State of Jammu and Kashmir : 1957CriLJ316 . the Supreme Court quoted with approval the following observations of the Federal Court in Keshav Talpade v. Emperor :

If a detaining authority gives four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them.

(Underlining is ours)

21. After quoting the aforesaid observations, Jagannadhadas, J., who spoke for the Court in Dwarka Das's case : 1957CriLJ316 said thus at page 168 (of AIR SC) : at a 319 of Cri LJ:

Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, ff that satisfaction is stated to be based on a number of grounds or for a variety of reasons. all taken together, and if some out of them are found to be non-existent or irrelevant the very exercise of the power is bad. That is so because the matter being one for subjective satisfaction, it must be properly based on all the reason on which it purports to be based. I some out of them are found to be nonexistent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those ground or reasons. To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction on the statutory authority. In applying these principles, however, the Court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The Court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders.

(Underlining is ours)

22. In Rameshwar Lai v. State of Bihar : [1968]2SCR505 , Hidayatullah, J. (as he then was), observed thus at p. 1305 (of AIR) : (at p. 1492 of Cri LJ

However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high, is a serious matter. It must require the closest scrutiny of the material on which the decision is formed, leaving no room for errors or at least avoidable errors. The very reason that the Courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others.

(Underlining is ours)

23. From the aforesaid decisions of the Supreme Court, it is clear that where an order of detention is based on a non-existent or substantially erroneous ground, reason or material, such order is bad in law. It makes no difference whether such non-existence or substantial error was in regard to a ground or reason or material on which the order of detention was based, As stated earlier, the District Magistrate relied upon the fact of the conviction of the petitioner, ignoring that such conviction was wiped out when it was set aside in appeal. Whether the conviction of the petitioner in Cr. Case No. &32/3 of 19i66 by the Court of the Munsiff Magistrate, Is regarded as a material or reason or ground on which the order of detention was based, it (the conviction) cannot be regarded as being of a comparatively unessential nature. Of the three instances of conviction of the petitioner referred to in the grounds of detention, the conviction which was later set aside in appeal', was for a comparatively more serious offence as the fine imposed in respect of that conviction was Rs. 100, while in respect of two other convictions the fines imposed were only Rs. 25 and Rs. 50 respectively.

24. When the order of detention made by the District Magistrate, was based on several materials one of which is found to be either non-existent or substantially erroneous but not of unessential nature, we cannot speculate whether he would have made that order if he had not taken into consideration that nonexistent or erroneous material. The order of detention cannot be supported on the remaining materials relied upon by the District Magistrate.

25. However, the learned Advocate-General argued that even if the District Magistrate had taken into consideration only the tact of the petitioner being convicted, ignoring the fact of such conviction being set aside in appeal, the petitioner had, in his representations to the Advisory Board and the Government, brought to their notice the fact of such acquittal in appeal, that the Advisory Board which opined that there was sufficient cause for his detention, and the Government which confirmed the order of detention, must have considered the fact of such acquittal in appeal and that hence any error of the fact on the part of the District Magistrate did not vitiate the order of detention. In other words, the argument of the learned Advocate-General was that even if the District Magistrate who made the order of detention under Section 3 (2) of the Act, relied on a non-existent or substantially erroneous material, the defect was cured by the Advisory Board or the Government, or both, noticing such error and considering the correct materials.

26. In support of his above contention, the learned Advocate-General referred to the following observations in : 1972CriLJ1020 :

Besides, the District Magistrate, who issued the order is not the only and exclusive authority under the Act who has to be satisfied as to the necessity of the order of detention. The Act requires him to report the case to the Government, who in its turn has to be satisfied, on consideration of all relevant materials before it, that the order is both valid and proper. There is next the Advisory Board which has to consider once again all the relevant materials including the representation made by a detenu and has to give a personal hearing to him, if he so desires. It is, therefore, not possible to cay that the detaining authorities did not have before them all the relevant materials before each of them passed its respective order.

27. But in : 1951CriLJ373 , Kania, Section 4 who spoke for the Court, said thus at page 101 of AIR : at p. 376 of Cri LJ:

It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds therefore must be in existence when the order is made.

28. From the aforesaid observation, it is evident that the grounds on which an order of detention was made, must have been in existence when that order was made and that if any of those grounds was non-existent when that order was made, then the order would be bad in law. That the case of the detenu was subsequently considered by the Advisory Board and the Government who were made aware of the correct factual position and yet they regarded that the order of detention was justified, would not cure the infirmity in the original order of detention. We are unable to read the observations of the Supreme Court in Mohd. Salim Khan's case : 1972CriLJ1020 as altering the legal position enunciated by a Bench of six Judges in : 1951CriLJ373 .

29. Thus, the order of detention dated 27-8-1973 (Exhibit A) made by the District Magistrate was void ab initio on account of it (the order) being based on the conviction of the petitioner in a case, without taking into consideration his subsequent acquittal in appeal from that conviction. That infirmity could not be cured by the Advisory Board or the Government taking into consideration the fact of such acquittal in appeal.

30. For the reasons stated above, we make the 'rule nisi1 absolute and direct that the petitioner be set at liberty forthwith.

31. There will be no order as to costs.


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