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Haji M. Abdul Khader Vs. Dist. Magistrate, S.K. and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1974CriLJ1117
AppellantHaji M. Abdul Khader
RespondentDist. Magistrate, S.K. and anr.
Excerpt:
.....acts of the detenu could legitimately be made the basis for the formation of an opinion by the competent authority as to whether or not he should be detained under the mis act (vide 1951crilj373 and 1952crilj75 ;1959crilj1501 ;air1972sc739 ;air1972sc2388 ;air1972sc1850 ;air1973sc205 and 1973crilj862 .8. the above principles enumerated by the learned advocate-general are clearly supported by the cases cited. this view of ours is also reinforced by the fact that the detenu, in his affidavit produced before us, has pleaded in regard to them as best as he can. it is well established that the court has no power to review or consider the insufficiency of the evidence on which a detention order is made but the court insists that the statutory requirements must be strictly complied with. he..........of an affidavit sworn to by sri m. b. prakash, the district magistrate of s. kanara who is an authority competent to make the impugned order of detention. the said return is supported by affidavits sworn to by the jailor of the concerned sub jail and one p.c. abdulla, the sub inspector in charge of sullia police station. by these affidavits, they have controverted the allegations, besides raising grounds in support of a plea that the petition was not maintainable and, at any rate, the proper remedy for the detenu was to make out his case before the advisory board constituted under the maintenance of internal security act which was competent to make a report to the state government on receipt of which the state government may confirm an order of detention and continue the detention.....
Judgment:

Venkataswami, J.

1. By this petition, which purports to be under Article 226 of the Constitution of India read with Section 491, Criminal P.C. the petitioner has prayed for the release of his brother by name C. Abdulla, who is detained under the provisions of the Maintenance of Internal Security Act (1971) (MIS Act), in the sub-jail at Mangalore, by the issue of an appropriate order of direction in the nature of a Writ of Habeas Corpus.

2. The material allegations in the petition are: The detenu, C. Abdulla, is a grocery merchant at Anichinakatta in Puttur Taluk, South Kanara District. He was whisked away' in a jeep belonging to the Police on 11-7-1973 from a garage belonging to one Abbas, where he had gone to take out his car. The deponent of the affidavit had, after being informed of the place of detention, proceeded to Mangalore and his attempts to meet the detenu were unsuccessful as the jail authorities did not permit him, on 12-7-1973. Hence this petition, which is lodged on 18-7-1973.

3. When the matter was admitted for further consideration, this Court granted an interim order, enabling the petitioner to meet the detenu in jail. Consequently, after such meeting, an affidavit of the detenu has since been produced which is sworn to on 22-7-1973.

4. The detenu in his sworn statement has referred to the manner in which he had been taken by the police for the purpose of his detention under MIS Act and the difficulties he has had in getting in touch with his people and his Advocate. He has characterised the entire procedure as 'unfair and callous'. He has also made an attempt to traverse the grounds and material facts set out in the order of detention, which has been made under Section 3 (1) (a) (iii) of the MIS Act. In substance, his defence is that the instances (material facts) which have been made the basis for his detention were either untrue, irrelevant or concocted.

5. On behalf of the State, a return has been filed consisting of an affidavit sworn to by Sri M. B. Prakash, the District Magistrate of S. Kanara who is an authority competent to make the impugned order of detention. The said return is supported by affidavits sworn to by the jailor of the concerned Sub jail and one P.C. Abdulla, the Sub Inspector in charge of Sullia Police Station. By these affidavits, they have controverted the allegations, besides raising grounds in support of a plea that the petition was not maintainable and, at any rate, the proper remedy for the detenu was to make out his case before the Advisory Board constituted under the Maintenance of Internal Security Act which was competent to make a report to the State Government on receipt of which the State Government may confirm an order of detention and continue the detention or release the detenu, as the case may be.

6. On behalf of the petitioner, Sri Abdul Rahim Ahmed, the learned Counsel, contended thus: The instances referred to as forming the basis for the order of detention in question were vague and irrelevant to the requirements of law governing the order of detention. The satisfaction of the competent authority must be a reasonable satisfaction based on relevant material. In support of this submission, he relied principally on a decision of the Supreme Court in Mishri-lal Jain v. District Magistrate, Kamrup (1971) 2 SCWR 601 : 1972 Cri LJ 568 in addition to some observations in a decision of the High Court at Patna AIR 1944 Pat 354, which had been rendered under the Defence of India Rules as in force at the time, and for that reason unnecessary to be referred to any further.

7. On behalf of the detaining authority, the learned Advocate General invited our attention to several decisions of the Supreme Court and contended that the petition was premature and the proper remedy of the detenu was to place his case before the Advisory Board in regard to the untenability or falsity of the instances referred to in the order of detention. Based on the decisions of the Supreme Court cited by him, a few of which, which are relevant for our present purpose, have been adverted to later, he formulated the following propositions: (1) that the 'grounds' and material facts or instance in any order of detention are distinct and separate and cannot be used synonymously; grounds are conclusions of the competent authority based on factual material and such factual material could be supplemented by the Competent Authority on its own or at the instance of the detenu himself at a subsequent stage, but the grounds were not subject to such a process; (2) That the sufficiency or insufficiency of the material on which the satisfaction of the Competent Authority is based is not justiciable in a Court of law; (3) That what is justiciable is only to the extent that the facts furnished to a detenu are vague or irrelevant for the purpose of the statute in that the detenu cannot, on the basis of such material, meet the allegation or charges levelled against him; (4) that even if the acts which have been made the basis for the order of detention, constitute offences which are punishable under any other law, it would not impinge on the operation of the MIS Act and that would be so even if the detenu had been earlier prosecuted under any other law and acquitted in regard to any such act, and (5) That the previous acts of the detenu could legitimately be made the basis for the formation of an opinion by the competent authority as to whether or not he should be detained under the MIS Act (vide : 1951CriLJ373 and : 1952CriLJ75 ; : 1959CriLJ1501 ; : AIR1972SC739 ; : AIR1972SC2388 ; : AIR1972SC1850 ; : AIR1973SC205 and : 1973CriLJ862 .

8. The above principles enumerated by the learned Advocate-General are clearly supported by the cases cited. The decision relied on behalf of the detenu in (1971) 2 SCWR 601 : 1972 Cri LJ 568 cannot be of any assistance to him, in the facts and circumstances present in the instant case. That decision no doubt refers to the principle that if the reasons for the detention are vague or irrelevant from the point of view of the requirements of the law relating to detention, inasmuch as they are not of any help to the detenu in formulating his defence, any order of detention based on such vague and irrelevant material was liable to be struck down-But the question is whether the material furnished in the instant case suffers from any such defect. The instances which have been referred to in the order impugned, in our opinion, are not so vague as to amount to a denial of opportunity to the detenu to plead his case. This view of ours is also reinforced by the fact that the detenu, in his affidavit produced before us, has pleaded in regard to them as best as he can. Whether or not his answer has any merit is a matter to be determined by the Advisory Board constituted under MIS Act. Moreover, it has to be noted, in this connection, that it is open to the detenu to call for further particulars and also ask for an opportunity to be heard before such Advisory Board. It is no doubt true that one of the arguments urged is that some of the acts referred to in the order of detention have either been concocted or false or foisted on the detenu. These are matters which can properly be raised for consideration by the Advisory Board constituted under the MIS Act

9. In this context, the enunciation in two of the decisions of the Supreme Court may be referred to as relevant. In the case of B. Sundara Rao v. State of Orissa : AIR1972SC739 , the enunciation reads thus:

It is well established that the Court has no power to review or consider the insufficiency of the evidence on which a detention order is made but the Court insists that the statutory requirements must be strictly complied with. Therefore, when the Court closely scrutinises the grounds in support of the detention order the scrutiny is not for the purpose of determining the sufficiency of the materials but to see whether the grounds supplied are sufficient to enable the detenu to make an effective representation and are not unconnected with the requirements on which alone the order of detention is made....

In Tarak Nath Chakraborty v. State of W.B. : AIR1972SC2388 it is observed thus:. If these facts are proved his detention cannot be justified but we are not under the Act called upon to examine the veracity or otherwise of the allegations. He could best place all the material in respect of his detention before the Advisory Board and it is for the Board to determine the sufficiency or otherwise of the justification for his detention. The Board's opinion is based on the material placed before them by the petitioner as well as by the State Government, and the opinion expressed by them is arrived at after hearing the petitioner, if he so chooses to be heard....

It is therefore, clear from the above discussion that the petitioner would not be entitled to any relief. We however, wish to observe that we should not be understood as having expressed any opinion on the merits of the acts or instances attributed to the detenu in the order of detention.

The petition, therefore, fails and is accordingly dismissed.


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