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Ganapathi Pai Vs. District Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1974CriLJ859; (1973)2MysLJ279
AppellantGanapathi Pai
RespondentDistrict Magistrate and anr.
Excerpt:
.....necessity of making the detention order. of course, if the detenu is told about the details of facts besides the grounds he will certainly be in a better position to deal with the same. . it must be stated at the outset that neither the petitioner nor the detenu has complained in his affidavit before us that the ground of the order of detention, is vague or requires clarification or is incapable of being understood. it is now well settled that the ground must not be vague in the sense that it is incapable of being understood and insufficient for the detenu to make his representation. state of punjab 1952crilj75 ,the supreme court has clearly stated that instances of past activities of the detenu are relevant to be considered in giving rise to the subjective mental conviction of the..........11th july, 1973. the detenu has also filed his affidavit challenging his order of detention.6. the ground of detention along with the acts attributed to the detenu, reads as follows:no. 6/73-74-cc.to shri t. kamalaksha pai s/o t. gopala pai, rice merchant, kadri temple road, mangalore.in pursuance of section 8 of the maintenance of internal security act 1971 (central act 26 of 1971), you are hereby informed that grounds on which the detention order in pursuance of which you have been detained has been made are as follows:it has been reported by the superintendent of police in his letter dated 27-6-1973, 6-7-1973 and 9-7-1973 enclosing the report of circle inspector of police, mangalore town dated 27-6-1973 within whose jurisdiction you reside and the report of deputy superintendent of.....
Judgment:

Jagannatha Shetty, J.

1. This is a petition for habeas corpus under Article 226 of the Constitution.

2. Kamalaksha Pai who is a licensed wholesale rice merchant, trading at Bunder, Bangalore, was ordered to be detained by the District Magistrate, Mangalore, under Section 3 (1) (a) (iii) of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) (called shortly 'the Act'). The order was made on 11th July, 1973. He was arrested on the same day and detained in the sub-Jail, Mangalore.

3. The petitioner, the minor son of the detenu, complaining that his father was illegally detained and not provided with any facilities even to hand over the copy of the detention order, has moved this Court for a writ in the nature of habeas corpus.

4. In response to the notice issued, the learned Advocate-General has appeared, and, along with counter-affidavits, has produced the copy of the order of detention and also the grounds of detention served on the said detenu.

5. The Circle Inspector of Police (Traffic), Mangalore, has also filed an affidavit stating that he served the detenu, the order of detention with the grounds therefor and thereafter took him to the special Sub-Jail, Mangalore, on 11th July, 1973. The detenu has also filed his affidavit challenging his order of detention.

6. The ground of detention along with the acts attributed to the detenu, reads as follows:

No. 6/73-74-CC.

To Shri T. Kamalaksha Pai s/o T. Gopala Pai, Rice Merchant, Kadri Temple Road, Mangalore.

In pursuance of Section 8 of the Maintenance of Internal Security Act 1971 (Central Act 26 of 1971), you are hereby informed that grounds on which the detention order in pursuance of which you have been detained has been made are as follows:

It has been reported by the Superintendent of Police in his letter dated 27-6-1973, 6-7-1973 and 9-7-1973 enclosing the report of Circle Inspector of Police, Mangalore Town dated 27-6-1973 within whose jurisdiction you reside and the report of Deputy Superintendent of Police, G. B. II, C. I. D., Mangalore that you have been engaged in acts of smuggling rice from South Kanara District to Kerala in contravention of Mysore Foodgrains, (Regulation of Transport of Foodgrains) Order 1966 and the Mysore Foodgrains (Wholesale) Dealers Licensing Order, 1964, and you and persons employed by you have been indulging in acts which are prejudicial to the maintenance of supplies and services essential to the community. In support, the following instances have been reported.

(a) On 1-7-1972 you engaged lorries MYX 8305 and MYX 7696 for smuggling rice from Mangalore to Kerala State and the police apprehended lorries with 98 bags of boiled rice in MYX 8305 and 132 bags of rice in lorry MYX 7696 and along with driver F. Abdula, M. A. Usman and cleaners Padmanabha and Yusuf and you have been prosecuted in Mangalore East Police Station Crime No. 106/72 and 107/72 for violation of Mysore Foodgrains (Regulation of Transport of Foodgrains) Order, 1966 and cases are pending in the Court of Judicial First Class Magistrate.Mangalore, in C. C. No. 1192/72 and 1193/72 respectively.

(b) That you have been prosecuted in Mangalore South F. I. R. No. 368/72 and convicted by the Judicial First Class Magistrate, Mangalore in C. C. No. 1077/72 on 15-9-1972 for failure to display stock board and price list in violation of Mysore Food grains (Wholesale) Dealers Licensing Order, . 1964.

(c) On 4-7-73 in Crime No. 118/73 and 120/73 of Ullal Police Station, one Uamorabba, s/o Abu Baker, Manchild in Peramunnur village in Rajir village, Buntwal Taluk, were apprehended carrying head-loads of rice to Kerala and they have stated that they have been engaged by you.

(d) From the above mentioned instances and the reports of theSuperintendent of Police, S.K. and Dy. Superintendent of Police, C.B.I., C.I.D., Mangalore and other information available to me I am satisfied you are indulging in acts which are prejudicial to the maintenance of supply of rice, to the community in South Kanara District.

(2) If you desire to make any representation against the said order of detention, you may address it to the Commissioner for Home Affairs and Secretary to Government, Home Department, Vidhana Soudln, Banga-lore-1, through the Superintendent of Sub-Jail, Mangalore.

(3) You are further informed that you have a right to claim a personal hearing before the Advisory Board and if you desire to be heard you should communicate your intention in writing to the Commissioner for Home Affairs and Secretary to Government, Home Department, Vidbana Soudha, Bangalore, as soon as possible.

SD/-

District Magistrate,

S, K. District, Mangalore.

7. It is seen from the above communication, that the detenu was ordered to be detained for his acts of smuggling rice from South Kanara District to Kerala in contravention of the Mysore Foodgrains (Regulation of Transport of Foodgrains) Order, 1966, and the Mysore Foodgrains (Wholesale) Dealers Licensing Order, 1964, and that those acts committed by him and his employees, are prejudicial to the maintenance of supplies and services essential to the community. The communication also sets out three instances in which the detenu was said to have been involved in the acts of smuggling rice.

8. The main contention of Mr. Venkataranga Iyengar was that the three instances attributed to the detenu are the grounds of the order of his detention and those grounds are vague and have no relation to the maintenance of supplies and services essential to the community. He alternatively contended that the said instances or acts were stray-acts of an individual and cannot be in any manner prejudicial to the maintenance of supplies and services essential to the community.

9. The contention, it seems to us, proceeded on a little misconception as to the nature of the ground of the order of detention required to be furnished under Section 8 of the Act, and, the one given in the instant case. The learned Advocate-General submitted that the ground of the order of detention against the detenu was that he has been engaged in acts of smuggling rice from the South Kanara District to Kerala and that those acts of smuggling are prejudicial to the maintenance of supplies and services essential to the community. He further said that in support of the ground, three instances :in which the detenu was directly or indirectly involved, have been furnished to him' and that those instances are not the 'grounds' for his detention.

10. In order to appreciate the contention, a reference to the following decisions of the'Supreme Court are useful.

11. In State of Bombay v. Atma Ram Shridhar Vaidya : 1951CriLJ373 , Kania, C. J., while dealing with the nature of the grounds to be furnished under the Preventive Detention Act (Act IV of 1950), said at page 161 thus:

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. By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts. The conclusions drawn from the available facts will show in which of the three categories of prejudicial acts the suspected activity of the particular person is considered to fall. These conclusions are the 'grounds' and they must be supplied.' The learned Chief Justice further said:

In order that a representation can be made the person detained must first have knowledge of the grounds on which the authorities conveyed that they were satisfied about the necessity of making the detention order. It is, therefore, clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must be sufficient to attain that object. Ordinarily, the 'grounds' in the sense of conclusions drawn by the authorities will indicate the kind of prejudicial act the detenu is suspected of being engaged in and that will be sufficient to enable him to make a representation setting out his innocent activities to dispel the suspicion against him. Of course, if the detenu is told about the details of facts besides the grounds he will certainly be in a better position to deal with the same.

12. Bearing in mind the above principles, we may state that there is a clear difference between the 'grounds' of the order of detention and the incidents or events or information collected against the detenu. The later constitute the evidence upon which the grounds are based. The grounds, in other words, are conclusions of the order of detention, informing the detenu as to why he was being detained. In other words, as the Supreme Court again observed in Naresh Chandra Ganguli v. State of W.B. : 1959CriLJ1501 , 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. It was further observed in the said case that if the information supplied in order to enable a detenu to make representation, does not contain sufficient particulars, the detenu is entitled to ask for further particulars which will enable him to make a representation.

13. 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 from South Kanara District to Kerala State in contravention of the Mysore Foodgrains (Regulation of Transport of Foodgrains) Order, 1966, and the Mysore Foodgrains (Wholesale) Dealers Licensing Order, 1964. 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.

14. We shall now examine the contention whether the ground is vague.. It must be stated at the outset that neither the petitioner nor the detenu has complained in his affidavit before us that the ground of the order of detention, is vague or requires clarification or is incapable of being understood. The detenu while denying the incidents attributed to him has stated that he was innocent and never engaged himself in any objectionable activities. We would, however, briefly examine the question since it was argued before us. The nature of the ground ordinarily varies according to the circumstances of each case. It is now well settled that the ground must not be vague in the sense that it is incapable of being understood and insufficient for the detenu to make his representation. But it must not be confused with the sufficiency of the evidence in support of the ground. The ground in the instant case, seems to us, is specific and it states that the detenu has been engaged in acts of smuggling rice from South Kanara District to Kerala State. This ground is supported by at least two specific instances attributed to the detenu. If read together, the ground cannot be said to be vague but sufficiently informative to enable the detenu to make his representation. The decision of the Supreme Court in Mishrilal Jain v. Dist. Magistrate Kamrup (1971) 2 SCWR 601 : 1972 Cri LJ 568 relied upon by the counsel for the petitioner, has no application to the facts of the present case.

15. It was next urged that the past activities of the detenu are not relevant for consideration. We are unable to agree with this contention. In Bhim Sen v. State of Punjab : 1952CriLJ75 , the Supreme Court has clearly stated that instances of past activities of the detenu are relevant to be considered in giving rise to the subjective mental conviction of the District Magistrate that the detenu is likely to indulge in objectionable activities.

16. The next contention urged was that the instances attributed to the detenu are stray acts of an individual and cannot be said to be prejudicial to the maintenance of supplies and services to the community.

17. We do not think that there should always be a chain of acts of smuggling by a person by himself or along with others, in order to attract the provisions of Section 3 of the Act. It all depends upon the existing circumstances at a given place. It is not disputed that rice is in acute shortage in the South Kanara District. In such a situation, every act of its smuggling from that District to Kerala State, if true, may be prejudicial to the maintenance of supplies of rice which is so vitally needed for the life of the community. We, however, make it clear that we are not expressing any opinion on the sufficiency of the evidence against the detenu. We are only concerned with the question whether the ground given for the detention is vague or irrelevant. It is not 'or us to examine the sufficiency of the evidence and that has to be considered by the Advisory Board only. See : 1952CriLJ75 , and the Advisory Board is yet to examine the question.

18. The last contention urged by the learned Counsel was that out of the three instances attributed to the detenu, the first relates to a pending case before the Criminal Court and therefore it should not have been relied upon by the District Magistrate. Reliance was placed on the decision of the High Court of Patna in Kamala Kant Azad v. Emperor AIR 1944 Pat 354 wherein it was held that it is very undesirable and indeed quite wrong that an order of detention should be made against a person who was awaiting trial on a charge before a Criminal Court.

19. We are unable to agree with that view in view of the law laiddown by the Supreme Court in a series of decisions. It was stated in Borjahan Gorey v. State of West Bengal : [1973]1SCR751 and reiterated in subsequent decisions like Mohd. Subrati v. State of W.B. : 1974CriLJ397 and Indradeo Mohato v. State of W.B. : 1973CriLJ862 , that the fact that the petitioner should be tried for the commission of offences disclosed in the grounds of detention is immaterial because his liability to be tried in a court of law cannot debar the authority concerned from detaining him if his acts bring his case within the purview of Section 3 of the Maintenance of Internal Security Act. The liability of the detenu to be tried in Courts of law for being punished for the commission of an offence does not impinge upon the operation of the Maintenance of Internal Security Act, 1971. The respective fields of operation of the law providing for trial and punishment for the commission of offences and of the Act are not co-extensive. One is made to punish for past offences while the other is designed to prevent the person concerned from future mischief, irrespective of his liability to be punished in a Court of law on the basis of the same acts. Their operation is not alternative. The detenu's liability to be tried does not invalidate his detention.

20. In that view that we have taken on the nature of the ground of the order of detention, the one other contention urged by learned Counsel for the petitioner that the subjective satisfaction of the District Magistrate was based on some irrelevant ground and that therefore the very exercise of the power is bad, does not call for consideration.

21. In the result, this petition fails and is dismissed.


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