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Smt. Chanda Rani Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1976CriLJ468
AppellantSmt. Chanda Rani
RespondentState of Uttar Pradesh and ors.
Excerpt:
- - 2. after hearing the learned counsel for the petitioner as well as the opposite .parties at great length and after giving our thoughtful consideration to the facts of the case, we came to the conclusion that the petition lacked merits. (3) for the purposes of clause (5) of article 22 of the constitution, the communication to a person detained in pursuance of a detention order of the grounds for which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention. it stipulates that the grounds on which the order of detention has been made shall be communicated to the detenu as soon as may toe after.....t.s. misra, j.1. this petition under article 226 of the constitution has been filed by smt. chanda rani, wife of dha-ram dev who has been detained by virtue of an order dated 21-2-75 passed by the government of u.p., under section 3(1)(iii) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (act 52 of 1974) hereinafter referred to as the 'act'. she has prayed for the issue of a writ, order or direction in the nature of habeas corpus commanding the opposite parties to present the detenu in this court and direct that he be set at liberty forthwith, a writ, order or direction in the nature of certio-rari quashing the impugned orders contained in annexures 16 and 17 of the writ petition, a writ, order or direction in the nature of mandamus commanding the.....
Judgment:

T.S. Misra, J.

1. This petition under Article 226 of the Constitution has been filed by Smt. Chanda Rani, wife of Dha-ram Dev who has been detained by virtue of an order dated 21-2-75 passed by the Government of U.P., under Section 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act 52 of 1974) hereinafter referred to as the 'Act'. She has prayed for the issue of a writ, order or direction in the nature of habeas corpus commanding the opposite parties to present the detenu in this Court and direct that he be set at liberty forthwith, a writ, order or direction in the nature of certio-rari quashing the impugned orders contained in Annexures 16 and 17 of the Writ Petition, a writ, order or direction in the nature of mandamus commanding the opposite parties to return the sum of Rs. 4,040 to Sri Pribh Das said to have been illegally seized from his premises, a writ, order or direction in the nature of certiorari be issued quashing the proceedings of the impugned search conducted on 20-2-75 at Railway Quarter No. II-165A Rest Camp Colony, Charbagh, Lucknow and order or direction declaring the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No. 52 of 1974 ultra vires Articles 14, 19 and 22 of the Constitution of India.

2. After hearing the learned Counsel for the petitioner as well as the opposite .parties at great length and after giving our thoughtful consideration to the facts of the case, we came to the conclusion that the petition lacked merits. We, therefore, by order dated 23-5-1975 rejected the petition with costs stating therein that our reasons shall follow later on. We now proceed to give our reasons.

3. According to the petitioner, the father of the detenu, Dharam Dev, resides at Railway Quarter No. II-165A Rest Camp Colony, Charbagh, Lucknow, whereas the detenu along with the petitioner resided at 306, Gandhi Nagar, Chhitwapur Pajawa, Lucknow. The petitioner is doing business in the name and style of Messrs. Pavan Traders at K-5, Kamla Market, Aminabad, Lucknow. Her husband Dharam Dev looked after the affairs of the business. The mother of the detenu and his sister had also started a business of wholesale chemists and druggis's under the name and style of Pa wan Pharma at 6 Khiamal Market, Aminabad, Lucknow and the opening ceremony of the said shop was to be held on 18-9-1974. On that very date the Customs Authorities made a search of the shop of Pawan Traders but they found no contraband or smuggled articles therein.

4. On 20-2-75 Customs Authorities conducted a search of the Railway Quarter No. II-165/A Rest Camp Colony, Char-bagh, Lucknow. The detenu Dharam Dev was also found present there at the time of the search. Four pieces of synthetic fabrics lying in a (bag were recovered from a room adjacent to the kitchen whereas currency notes of the value of Rs. 4,049 were recovered from the .person of Dharam Dev. Partially burnt papers and burnt synthetic fabrics were also recovered in that search. On 21st February, 1975 an order under Section 3(D)(iii) of the Act was made by the Government of U.P., and served on Dharam Dev directing his detention. A copy of this order is Annexure 16 to the writ petition. The grounds of detention were set forth in No. 132/2/11/75-X X-5m dated 25-2-75, a copy of which is Annexure 17 to the writ petition and were communicated to the detenu on the same day. The petitioner has challenged the order of detention and the grounds on which the said order was made alleging that the said order was passed in a mechanical manner and was mala fide, that Sri S. P. Pandey, the then Deputy Secretary, Home Department, Government of U.P., had no power or authority to make that order, that the grounds of detention communicated to the detenu were vague, irrelevant, incorrect and non-existent and had no proximate connection with the detention of the detenu and that the provisions of the Act under which he was detained are ultra vires Articles 14, 19 and 22 of the Constitution.

5. At the hearing of the petition the learned Counsel for the petitioner stated that he would not challenge the vires of the Act and gave up the grounds relating thereto. He therefore, did not press relief (e) sought for in the petition. We are hence not called upon to examine the vires of the Act. In fact it was conceded on behalf of the petitioner that the Act is not ultra vires Articles 14, 19 and 22 of the Constitution.

6. The learned Government Advocate appearing on behalf of the State of U.P., raised a preliminary objection to the maintainability of the writ petition in view of an order of the President of India, dated 23-12-1974 made in exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, whereby the right to move any court with respect to orders of detention made under the Act for the enforcement of the rights conferred by Article 14, Article 21, and Clause (4), Clause (5) read with Clause (6) and Clause (7) of Article 22 of the Constitution have been suspended for a period of six months from the date of the issue of that order or during which the proclamation of Emergency issued under Clause (1) of Article 352 of the Constitution is in force whichever period expires earlier. The learned Counsel for the .petitioner submitted that despite the aforesaid order of the President, it is still open to the petitioner and the detenu to challenge the order of detention and the grounds of detention, We shall first deal with this objection.

7. The effect of the Presidential Order made under Article 359(1) of the Constitution came to be considered in Makhan Singh v. State of Punjab : 1964CriLJ217 wherein it was held that the prohibition contained in the said Presidential Order will apply to the proceedings under Article 226 of the Constitution and also Article 32 thereof. It was .pointed out that the true legal position in substance is that the clause 'right to move any Court' used in Article 359(1) and the Presidential Order takes in all legal actions intended to be filed, or filed, in which the specified rights are sought to be enforced, and it covers ell relevant categories of jurisdictions of competent courts under which the said actions would otherwise normally have been entertained and tried. If the Presidential Order precludes a citizen from moving the court for the enforcement of the specified fundamental rights, it would not be open to the citizen to urge that the Act (Defence of India Act and Rules) is void for the reason that it offends against the said fundamental rights under Articles 14, 21 and 22 of the Constitution'. It is in view of this legal position that the learned Counsel for the petitioner had stated at the very outset that he would not challenge the validity and vires of the said Act. In Makhan Singh's case (supra) the order of the detention was passed under the Defence of India Act and the Rules made thereunder. While noting that an order of detention under the Defence of India Act and the Rules could not be challenged in proceedings under Section 491 (1) (b) of the Code of Criminal Procedure or Article 226(1) of the Constitution on the ground that the Act and the Rules contravene the fundamental rights under Articles 14, 21 and 22 by virtue of the Presidential Order under Article 359, it was held that the detention could be challenged on grounds of infringement of the right conferred by Part III of the Constitution other than these rights specified in the Presidential Order. For example the detenu can challenge the detention order on the ground that it is in violation of the mandatory provisions of the Defence of India Act. The right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order. Similarly the detenu can move the court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. The -exercise of a power mala fide is wholly out side the scope of the Defence of India Act conferring the power and can always be successfully challenged.... It is only in regard to that class of cases falling under Section 491 (1) (to) whereby the legality of the detention is challenged on grounds which fall under Article 359(1) and the Presidential Order that the bar would operate. In all other cases falling under Section 491 (1) the bar would be inapplicable and proceedings taken on behalf of the detenu will have to be tried in accordance with law. It is thus settled that despite the aforesaid Presidential Order the detenu can challenge the detention order on the grounds that: (i) it is in violation of the mandatory provisions of the Act under which it is made, (ii) it is mala fide and (iii) it is based on irrelevant or non-existent grounds. But, the detention order cannot be challenged on the grounds which fall under Article 359(1) of the Constitution and it shall not be open to the detenu to urge that the Act under which the detention order was made is void for the reason that it offends against the fundamental rights under Articles 14, 21 and 22 of the Constitution.

8. The learned Counsel for the petitioner, however, contended that the aforesaid order of the President would not debar the petitioner from challenging the detention order on the ground that the grounds of detention were vague. The learned Government Advocate disputed this proposition. In order to appreciate the argument it is necessary to read Section 3(3) of the Act, the Order of the President and Article 22 of the Constitution.

9. Sub-section (3) of Section 3 of the Act reads:

(3) For the purposes of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds For which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention.

The order of the President made under Article 359(1) of the Constitution on 23-12-1974 is as follows:-

G. S. R. No. 694 (E)- In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that-

(a) the right to move any court with respect to orders of detention which have -already been made or which may hereafter be made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974), or with respect to any other action (including the making of any declaration, under Section 3 of the said Act) which has: already been or may hereafter be, taken or omitted to be taken in respect of detention under such orders, or the enforcement of the rights conferred by Article 14, Article 21 and Clause (4), Clause (5) read with Clause (6) and Clause (7) of Article 22 of the Constitution, and

(b) all proceedings pending in any court for the enforcement of any of the aforesaid rights with respect to orders of detention made under the said Act or any other action (including the making of any declaration under the said section) taken or omitted to be taken in respect of detention under such orders,

shall remain suspended for a period of six months from the date of issue of this order or during which the Proclamation of Emergency issued under Clause (1) of Article 352 of the Constitution on the 3rd December, 1971 is in force, whichever period expires earlier.

2. This order shall extend to the whole of the territory of India.' Clause (5) of Article 22 of the Constitution reads:-

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

Sub-section (3) of the Act makes certain provisions for the purpose of Clause (5) of Article 22 of the Constitution. It stipulates that the grounds on which the order of detention has been made shall be communicated to the detenu as soon as may toe after the detention but ordinarily not later than five days, and in exceptional circumstances and for reason to be recorded in writing, not later than 15 days from the date of detention. It thus provides a time-limit within which the grounds on which the order of detention is founded should be communicated to the detenu. This provision has been made in the Act for the purpose of Clause (5) of Article 22 of the Constitution. Clause (5) of Article 22, it may be noticed does not specify a particular period within which the detaining authority must communicate to the detenu the grounds on which the order of detention against him has been made. It provides that such person must be informed as soon as may be by the detaining authority of the grounds on which the order of detention is founded. Subsection (3) of Section 3 of the Act specifies {he time within which the grounds of detention must be communicated to the detenu. Clause (5) of Article 22 further provides that the detaining authority shall afford the detenu the earliest opportunity of making a representation against the order of detention. Thus the purpose of Clause (5) of Article 22 is twofold, namely, (1) the grounds must be communicated to the detenu 'as soon as may be' and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order. 'Opportunity of making a representation' means that the detenu must be furnished with the grounds of detention so that he may make an effective representation against the order. 'Effective representation' cannot be made if the grounds are vague and lack in material and sufficient particulars.

9-A. The requirement of Sub-section (3) of Section 3 of the Act is that the communication to the detenu of the grounds on which the order of detention has been made, shall be made as soon as may be after the detention but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. But the Presidential Order referred to herein-above, has suspended the right to move any court with respect to orders of detention which have been made under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act for the enforcement of the rights conferred by Article 14, Article 21 and Clause (4), Clause (5) read with Clause (6) and Clause (7) of Article 22 of the Constitution; hence in our view the petitioner or the detenu cannot in a petition under Article 226 of the Constitution for a writ in the nature of habeas corpus plead and urge that his right to make an effective representation under Article 22(5) against the order of detention has been infringed, inasmuch as the grounds of detention communicated to the detenu were vague and lacked in sufficient particulars. His fundamental rights to receive the grounds on which the order of detention was made, and to make a representation against the said order before the Government were not abridged, suspended or taken away by the Presidential Order referred to above. He has still, in spite of the order of the President, a right to be informed of the grounds on which the order of detention has been made, as soon as may be after the detention has been made but ordinarily not later than five days and for reasons to be recorded in writing under exceptional circumstances not later than fifteen days from the date of detention, His right to make a representation against the order of detention is also not interfered with by the Presidential order, He may on receipt of the grounds of detention make a representation to the State Government, but his right to come to court to urge that he could not make an effective representation against the order of detention because the grounds furnished to him were vague, has been suspended by the order of the President dated 23-12-1974, It is not, therefore, open to this .Court to strike down the order of detention on the ground that the grounds of detention communicated to the detenu were vague inasmuch as that would] amount to enforcing a right conferred by Clause (5) of Article 22 of the Constitu-1 tion.

10. It was urged on behalf of the petitioner that for every law providing for preventive detention there is a constitutional requirement that it must provide for furnishing the grounds of detention and for affording an opportunity of making a representation against Ihe order of detention. It must also provide for the constitution of an Advisory Board, it has also to meet the constitutional requirement which suto-section (3) of Section 3 of the Act lays down viz., that the grounds should be communicated within the stipulated period and that nothing more was conveyed by the clause 'for the purpose of Clause (5) of Article 22 of the Constitution'. True it is that everv enactment dealing with preventive detention; must make provision for the constitution of an Advisory Board and for communicating the grounds of detention for making a representation against the order of detention as is enjoined by Article 22 of the Constitution. However, the clause 'for the purposes of Clause (5) of Article 22 of the Constitution' refers to the two basic purposes, namely, (1) furnishing of the grounds to the detenu and (2) making an effective representation against the order of detention. In view of the said Presidential Order, it is not open to the detenu to enforce his rights under Article 22(5) of the Constitution in a court of law and challenge the detention order on the ground of infringement of those rights. The detention order may, however, foe-challenged on the ground of infringement of the rights conferred by Part III of the Constitution other than those rights specified in the Presidential Order. The detenu may impugn the order of detention on the ground that any mandatory provision of the aforesaid Act has been violated, but his right to move the Court for his-release on the ground that he could not make an effective representation against the order of detention because the grounds on which the order of detention was passed were vague is affected and suspended! by the aforesaid Presidential Order,

11. In Mohd. Yaqub v. State of Jaramu and Kashmir : 1968CriLJ977 it was held that though non-furnishing of grounds under Article 22(5) of the Constitution cannot be pleaded in view of the suspension of the enforcement of that right, yet if the order was not under the Act the detention would stand vitiated. learned Counsel for the petitioner, however, referred us to two other decisions of the Supreme Court i.e., Rameshwar Lai Patwari v. The State of Bihar : [1968]2SCR505 and Moti Lai Jain v State of Bihar : 1969CriLJ33 in support of the proposition that the grounds of detention must not be vague or indefinite and if they were so, the detention would not be valid. He also referred us to Khudiram Das v. The State of West Bengal : [1975]2SCR832 in support of the same proposition and placed strong reliance on a decision of the Delhi High Court in Cri. Writ No. 1 of 1975 (Smt. Manekben v. Union of India) decided on 18-4-1975 (Delhi). In the cases of Rameshwar Lai Patwari, Moti Lai Jain and Khudiram Das (supra) there was no question of suspension of the right 1o move the Court for the enforcement of the right conferred by Article 22(5) of the Constitution as those cases were not affected by any Presidential Order issued under Clause (1) of Article 359 of the Constitution; hence in those cases the question whether the petitioner could challenge the validity of the detention order on the ground that the grounds of detention communicated to the detenu were vague was not considered. The Delhi High Court in the case of Smt. Manekben (supra) also did not consider this question while dealing with the effect of the Presidential Order. We are fortified in our view toy a Bench decision of this Court in Habeas Corpus Writ No. 8156 of 1975 (Panna Lai v. State of U.P.) decided on 25-2-1975:Reported in 1975 Cri LJ 1426) (AH.) Noting the difference in the phraseology of Section 8 of Maintenance of Internal Security Act and Section 3 of Act 52 of 1974 the Division Bench in Panna-lal's case observed;

Whereas the language of Section 8 (1) of the Maintenance of Internal Security Act seems to indicate that the Statute itself provides for an obligation on the authority making a detention order to supply the grounds of detention so as to enable the detenu to make a representation against his detention order. Section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, does not seem to imply any conferment of a fresh statutory obligation to supply the grounds of detention. It merely provides that for the purposes of Article 22 the communication of the grounds of detention will have to be made as soon. as it is possible to do so after a person has been put under detention and that such a communication should ordinarily be made within five days. If for some extraordinary reason the detention order cannot be served within five days the detaining authority has to record the reasons for the same and to take ste.ps to-serve the order within 15 days. This legislation thus specifically seeks to regulate the manner in which the right guaranteed by Article 22 of the Constitution had to be given effect to. The legislature did not intend to create any fresh statutory right or obligation independent of Article 22 of the-Constitution which requires that in case of preventive detention, the grounds of detention must be served upon the detenu as soon as it may be, after he 'is placed under detention'. This section on its own does not require that the detenu should be served with grounds of detention or that he should be afforded an opportunity of making representation against the detention. That requirement in the case of & person detained under the 1974 Act flows only from what is contained in Article 22 of the Constitution. Accordingly, when a detenu contends that his detention is illegal because he has not been supplied with the grounds of detention or that the-grounds of detention supplied to him are such that he cannot make an effective representation, he does not complain of any breach of obligation flowing from Section 3(3) of the 1974 Act. In sucli a case. he merely complains of violation of the provisions of Article 22 of the Constitution. Once the right to enforce the provisions of Article 22 has been suspended no question of enforcing the procedure for the enforcement of that right or obligation under Article 22 of the Constitution in the manner provided in the 1974 Act can remain. In this view of the matter, it is not necessary for us to resolve the divergence of opinion between the Kerala and the Nagpur Bench of the Bombay High Courfc on the one hand and the Madras, Karna-taka, Gujarat and Delhi High Courts on the other. Suffice it to say that as in this case the right to enforce the provisions of Article 22(4), (5), (6) and (7) has been suspended, this Court cannot enforce thest very provisions by requiring the respondents to follow a statutory provision enacted with the sole object of regulating the manner in which the obligation flowing from the provisions of these articles is to be discharged. It, therefore, follows that in this case the petitioner is precluded from challenging his detention either because the grounds of detention were not communicated to him or that those communicated to him were so vague that: ^ deprived of an effective opportu- nity of making an effective representation.

12. We respectfully agree with the aforesaid views expressed by the Division Bench in Pannalal's case (1975 Cri LJ 1426) (All.) (supra) and are of the opinion that the order of detention made under the Act and the grounds on which the said jorder was made cannot be challenged on Ithe ground that the grounds of detention j communicated to the detenu were vague and therefore he could not make an effective representation against the order of j detention. But, as pointed out earlier, a detention order passed under the Act can be challenged on the ground that it is in violation of the mandatory provisions of the Act, or is mala fide or it is based on irrelevant and non-existent grounds. The petitioner in the instant case has impugned the order of detention on those grounds as well.

13. For the petitioner it was submitted that the impugned order of detention was not made by the state Government, but by an officer of the Government of U.P., below the rank of the Secretary. The contention was that both the orders copies of which are Annexures 16 and 17. were signed by Sri Sachchidanand Pandey, Deputy Secretary, Confidential and Home Department of the Government of U.P., and as a Deputy Secretary is not empowered to make such orders, the same were void and of no effect. This contention, in our view, is not sound. A perusal of Annexures 16 and 17 would disclose that the said orders were passed toy the -Government of U.P. and Sri Sachchidanand Pandey has signed the same indicating that it was by order of Governor. From Annexure A to the counter-affidavit of Sri Sachchidanand Pandev it is quite manifest that any order passed 'by the State Government shall be deemed to be an order passed by the order of the Governor and that the Deputy Secretary was authorised to authenticate any such order. In the instant case the order of detention dated 21-2-75 was passed by the Government of Uttar Pradesh, Sri Sachchidanand Pandey, Deputy Secretary, had merely authenticated the same. This authentication is in accordance with the provisions -of Article 166(2) of the Constitution. The learned Government Advocate appearing on behalf of the State produced before us a Gazette notification dated 19-2-75 showing that the Home Department had been allocated to Sri H. N. Bahuguna, the Chief Minister. The functions under the Act undoubtedly relate to Home Department. The learned Government Advocate also placed before us the original file of the State Government showing that the .order of detention was passed by Sri H. N. Bahuguna the Chief Minister, The leawied counsel for the petitioner stated that the petitioner did not want to seek the .production of rules framed under Sub-clause (3) of Article 166 of the Constitution. That being so, there could arise no occasion for the Government of U.P. to claim privilege as regards the production of those rules is concerned. It was, however, urged on behalf of the petitioner that as those rules have not been published and are kept confidential, neither the petitioner nor the detenu has any knowledge of the same, hence the alleged rules are not binding on the petitioner and the detenu and those rules should be deemed to be non-existent. Therefore, even if the order of detention was passed by the Chief Minister it was illegal, without jurisdiction and void. This submission, in our view, has no substance. In fact the contention of the learned Counsel is self contradictory. To keep a document secret and treat it confidenital presupposes that the document exists. If the document is non-existent the question of keeping it secret and confidential would not arise. It is not in the interest of the community that all the documents of the Government must be readily available for inspection by any citizen. For the proper and effective functioning of the Government and for the welfare of the society, the Government may decide not to make known to all and sundry some of its documents. It is not the right of a citizen to have an unfettered access to all the documents of the Government. The Government may keep certain documents secret and confidential and may resist the claim of an individual for the production of such a document. Whether such a resistance is justified would be a matter for the court to decide when a particular document is sought to be produced and the privilege is claimed by the Government. That stage, however, did not come in the instant case. It was admitted on behalf of the Government of U, P. that the Governor has framed rules under Article 166 of the Constitution for the conduct of the business of the Government. But they are treated confidential. These rules are framed for the allocation of business of the Government to the various Ministers and for the guidance of the officers of the Government in the conduct of the business of the Government. Publication of such rules for making them known to the public is, in our view, not necessary. Non-publication of such rules will not render them non-existent.

14. In A. Sanjeevi Naidu v. State of Madras : [1970]3SCR505 it was at served:-

Under our Constitution, the Governor is essentially a constitutional head, the administration of State is run by the Council of Ministers. But in the very na-4ure of things, it is impossible for the Council of Ministers to deal with each and every matter that comes before the Government. In order to obviate that difficulty the Constitution has Authorised the Governor under Sub-article (3) of Article 166 to make rules for the more convenient transaction of business of the Government of the State and for the allocation .amongst its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business. He can, not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But this again he can do only on the advice of the Council of Ministers.

We have already pointed out above that the Governor has allocated the Home Department to the Chief Minister, vide notification dated 19th Feb. 1975. The public including the petitioner and the detenu were thus made aware of the act that the Home Department had been allocated to the Chief Minister. The impugned order having been passed by the Chief Minister is the order passed by the State Goyern-ment. It was authenticated (by the Deputy Secretary to Government, Confidential and Home Department, who was duly authorised to do so vide notification of 26-1-1950, copy of which is Annexure A to the counter-affidavit of Sri Sachchidanand Pandey. The validity of that order which is authenticated cannot be called in question on the ground that it is not an order made by the Governor. Where the order -of detention expressly stated that the 'Government of U.P., was satisfied of its necessity and that it was made by it, the mere fact that it is signed by the Deputy Secretary, Home Department, would not make it defective, Similarly communication of the grounds need not foe made directly by the authority making the order. The communication may be made through recognised channels prescribed by the administration rules of business. We have already pointed out above that the Deputy Secretary was duly authorised and was in fact a recognised channel to communicate the order of detention and the grounds.

15. It was then urged that the affidavit of Sri S. Pandey was not sufficient to establish that the impugned orders An-nexures 16 and 17 to the writ petition were passed by the State Government, and that in the absence of any affidavit of the Minister concerned the said order should be held to be invalid. There is no force in this contention either. Section 3 of the Act provides that an order thereunder can be passed by the State Government or any officer of the State Government not below the rank of Secretary to Government specially empowered for the purpose of this section by the Government. The detaining authority may, if satisfied, with respect to any person that with a view to or eventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from doing any of the acts mentioned therein it is necessary so to do, make an order directing that such person be detained. The impugned order of detention dated 21-2-75 Annexure 16 shows that the Government of U.P., were satisfied with respect to the person known as Dharam Dev that with a view to preventing him from engaging in keeping smuggled goods it was necessary to order his detention, the Government of U.P., therefore, in exercise of its power conferred by Section 3(1)(iii) of the Act directed that the said Dharam Dev be detained in Model Jail, Lucknow, in custody of the Superintendent of the said Jail.

16. Sri Sachchidanand Pandey in his counter-affidavit has deposed in his affidavit that the order of detention was made iby the State Government and that he in the capacity of Deputy Secretary authenticated the said order as empowered by the Governor under the rules framed in exercise of the powers conferred by Article 166(2) of the Constitution. He has sworn this fact on personal knowledge. We find nothing to disbelieve him. In our view it was not necessary in this case that an affidavit of the Chief Minister should have been filed to prove that the order of detention was passed by the State Government. Sri Sachchidanand Pandey, Deputy Secretary, Confidential and Home Department had the requisite means of knowledge and his affidavit is enough to prove that the order of detention was validly made by the Government of State.

17. The next contention made on behalf of the petitioner was that the said orders, copies of which are Annexures 16 and 17 to the writ .petition, were passed mechanically by the detaining authority without applying its mind. This contention has no merits, it has come in the counter-affidavit of Sri Sachchidanand Pandey that the order of detention was passed by the State Government upon a careful consideration of the material placed before it: in that connection it was manifest that Sri V. N. Pandey had been acting on behalf of the detenu and that there was a potential indication of the modus operandi adopted by the detenu for indulging in acts of smuggling and the strong tendency on his part to do so and that the nature of the complicity of the detenu in this connection was such that mere passage of time could not be considered material in view of the subsequent reports and activities of the detenu which also came to light. The various intelligence reports were revealing and they gave a fair idea as to the nature of the activities indulged in by the detenu during all the material period. On a perusal of the original file of the State Government placed before us we were satisfied that the order of detention was passed by the State Government upon a consideration of the material placed before it, and that there was sufficient basis for the State Government to act upon that material. The substance of the said material is to be found in the grounds served upon the detenu. In the circumstances, we find no force in the submission that the order of detention was made by the State Government in a mechanical manner without applying their mind.

18. The other contention on behalf of the petitioner that the said orders were issued mala fide is equally meritless. The said orders were admittedly passed by the State Government on various materials placed before it. In the writ .petition and the rejoinder affidavit allegations have been made 1o show that the Customs Authorities were ill-disposed against the detenu and his father and other family members, that ultimately Sri Kailash Sethi, opposite party No. 3. prevailed upon certain officers of the State Government to pass an order under Section 3 of the Act and that 1he detention of the detenu on the ground that he had Sri V. N. Pandey as an associate in the act of smuggling was a malicious ground and had been fabricated for the purpose of justifying his illegal detention. Sri Kailash Sethi, opposite party No. 3, has denied that he was in any way ill-disposed aea'nst the detenu or his father He has fur+her denied that he had prevailed upon the officers of the State Government to pass the detention order, Sri Sachchida-nand Pandey, Deputy Secretary in his counter-affidavit has refu+ed the allegation that opposite party No. 3 had prevailed upon certain officers of the State Government to pass an order under Section 3 of the Act. He has derjosed that the order of detention was passed by the State Government upon a careful consideration of the material placed before it in that behalf. It is to be noticed that the allepation that opposite party No. 3 prevailed upon certain officers of the State Govern- ment to pass an order under Section 3 of the Act is contained in paragraph 39 of the writ petition. This paragraph 39 has, however, not been verified at all: hence the averments made in this paragraph of the writ petition viz., para 39 are not worth consideration and cannot be relied upon.

19. That apart, it has not been disclosed in the petition as to who were those officers of the State Government who were prevailed upon by opposite party No. 3 to issue the detention order in question, nor has it been disclosed as to when and in what manner opposite party No. 3 exercised his influence on certain officers of the State Government to issue that order. The allegation is obviously vague and lacks in material particulars, hence no reliance can be placed on such an allegation. Sri Sachchidanand Pandey, Deputy Secretary, has deposed that the materials placed before the State Government disclosed that Sri V. N. Pandey had been acting merely as an agent on behalf of the detenu and that there was a potential indication of the modus operandi adopted by the detenu for indulging in acts of smuggling. The petitioner has thus failed to make out that the State Government was in any manner ill-disposed against the detenu or his father and that it acted in a mala fide manner in issuing the detention order against the detenu. Even if it be assumed that the authorities of the Customs Deipartment were not happy with the detenu and his father, and were 'bent upon harassing them, that would not be indicative of the fact that the State Government was also ill-disposed against the detenu and his father and other members of their family and that State Government had mala fide passed the order of detention in question. Further the petitioner has not impleaded any of those officers of the State Government who were said to have been prevailed upon toy the Customs Authorities to mala fide issue the detention order. In their absence it is not possible to hold that order of detention was made mala fide by the State Government.

19-A. It was urgfid that the impugned orders were issued arbitrarily by the State Government and, therefore, were liable to be quashed on this ground. We find no substance in this contention also. As pointed out earlier, the said orders were issued on scrutiny and careful consideration of the material placed before the State Government These orders were, in our view, not made in the arbitrary exercise of powers under Section 5 of the Act. Moreover, as pointed out in Dinanath Pansari v. Collector and D. M. Keonhar : AIR1975SC1093 in considering the legality of such an order this Court will not function as a Court of Appeal. 'If there is any material to justify the passing of the detention order the necessity for it is a matter of subjective .assessment and satisfaction by the detaining authority with which no court would the ordinarily justified [n interfering. It is only when the order is shown to be of such a nature that it could not possibly fall within the scope of the law conferring the power to make it that the Supreme Court would intervene to quash it.'

20. We do not find any legal flaw in the proceedings which resulted in the impugned detention order,

21. It was next urged on behalf of the petitioner that the incidents set out in ^he grounds of detention were so remote from the date of the order of detention that the State Government could not possibly have arrived at their subjective satisfaction on the basis of those incidents. The submission was that the requirement of proximity was not satisfied in the instant case, and the subjective satisfaction said to have teen reached by the State Government could not have been regarded as real or genuine. It is true, as pointed out by the Supreme Court in Golam Husaain v. Commr. of Police, Calcutta : 1974CriLJ938 that 'there must be a live link between the grounds of criminal activity -alleged by tile detaining authority and the purpose of detention, namely, inhibition of prejudicial activity of the species specified in the statute. This credible chain is snapped if there is too long and unexplained an interval between the offending acts and the order of detention.' The same view was expressed in Lakshman Khatik v. The State of West Bengal : 1974CriLJ936 . The requirement of proximity again came to be considered by the Supreme Court in Cora v. State of West Bengal. : 1975CriLJ429 and it was observed:-

No authority, acting rationally, can be satisfied subjectively or other-wist, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of 1he interval is sound. It all depends on the nature of the acts relied en, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have %o investigate whether the causal connection has been broken in the circumstances of each case. There is therefore no hard and fast rule that merely because there is a time lag of about six months between the offending acts and the date of the order of detention, the causal link must be taken to 'be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the (basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstance of each case. The test of proximity is not a rigid or mechanical test to 'be blindly applied by merely counting the number of months between the offending acts and the order of detention. It is a subsidiary test evolved by the court for the purpose of determining the main question whether the ,past activities of the detenu is such that from it a reasonable .prognosis can be made as to the future conduct of the detenu and its utility therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on toy the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future.

22-23. Applying these principles to the instant case, we are satisfied that the grounds relied on form a rational relation, to the subjective satisfaction regarding the prejudicial activities imputed to the detenu and that nothing could be made out on behalf of the detenu on the basis of proximity and the order made. The prejudicial acts of the detenu were of such a character as to suggest that it was a part of an organised operation of A complex of agents collaborating to clandestinely and secretly carry on the activity of smuggling. Considering the material placed before the State Government in the totality of the growing canvas the State Government came to be satisfied that the detenu was likely to engage in the future in keeping smuggled goods. This subjective satisfaction was obviously founded on the analysis of past deeds ranging during the period 1969 to 1975. The record of the case which was pro- duced 'before us by the learned Government Advocate appearing on behalf of the State showed that the substance of the material placed before the State Government had been incorporated in the grounds. Annexure 17. The intelligence reports indicated that the detenu was engaged in the nefarious activity of smuggling. As stated above, the counter-affidavit of Sri Sachchidanand Pandey makes it clear that the State Government, while passing the impugned order was possessed of the information with regard to the activities of the detenu during the years 1969-75 and which indicated that' the detenu had continued his activity of smuggling. In our view, such activities of the detenu could be taken into consideration for forming a subjective satisfaction that unless the detenu was detained, he would continue those activities. The State Government was satisfied on the basis of materials placed before it that the detenu would continue to indulge in smuggling activities unless he was detained. this Court will not examine the sufficiency and adequacy of the material in which the satisfaction of the Government purported to rest. We therefore, reject the aforesaid contention of the petitioner.

24. We also find no substance in the contention of the petitioner that the grounds for the impusned order of detention were irrelevant. It is no doubt well settled that if any of the grounds for the order is irrelevant, the entire detention order will fail inasmuch as it is not possible to predicate as to whether the detaining authority would have made an order of detention even in the absence of relevant grounds. The grounds must, therefore, be relevant having a nexus with the object of the order of detention. In the instant case, it could not be pointed out as to which of the grounds of detention furnished to the petitioner is irrelevant.

25. Referring to the provisions of Section 3 of the Act learned Counsel for the petitioner urged that an order for detention of a person can be made only if the detaining authority is satisfied that it is necessary to prevent the person concerned from inter alia, engaging in keeping smuggled goods. Hence before making an order under Section 3, the detaining authority must be satisfied that the person concerned shall engage in keeping smuggled goods and it is necessary to prevent him from doing so. He submitted that no such order can be passed, if the detaining authority is merely satisfied that the person concerned is 'likely' to engage in keeping smuggled goods and with a view to prevent him from keeping any such material it is necessary to detain him. Referring to the grounds of detention, Annexure 17 the learned Counsel submit- ted that it appeared that the Government of U.P., was merely satisfied that the-detenu was 'likely' to engage in keeping smuggled goods. This satisfaction according to the submission of the learned Counsel was not sufficient to warrant an order of detention under Section 3 of the Act. In our view, this submission is misconceived and untenable. The nature of the activities of a person, and the attendant circumstances may in a given case be such as to reasonably justify an inference that the .person if not detained, would be likely to indulge in the commission of such acts in the future. The power of preventive detention is a precautionary power exercised in reasonable anticipation. In preventive detention the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. The Supreme Court in Debu Mahto v. State of W. Bengal : 1974CriLJ699 observed that 'the order of detention is essentially a precautionary measure and it is based1 on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. But whatever it the, it must be of such a nature that an inference can reasonably be drawn from it that the person concerned would .be likely to repeat such acts so as to warrant his detention, (emphasis applied). It may be easier to-draw such an inference where there is a. series of acts evincing a course of conduct but even if there is- a single act, such an inference may justifiably be drawn in. a given case.'

26. In the instant case the Government of U.P., after carefully scrutinising all the material placed before it in their totality came to be satisfied that detenu Dharam Dev was likely to engage in keeping smuggled goods and with a view to prevent him from acting in such a manner, it was necessary to detain him. Such an inference could be justifiably drawn from the activities of the aforesaid detenu which evinced a course of conduct, namely, engaging in keeping smuggled goods. The future behaviour of Dharam Dev based on his past conduct in the light of surrounding circumstances is . the real ground of detention.

27. No other point was urged. We have, thus found no merits in the petition and have rejected with costs.


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