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Haji Ibrahim Vs. the State of Madhya Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1975CriLJ1438
AppellantHaji Ibrahim
RespondentThe State of Madhya Pradesh and anr.
Cases ReferredIn Jainal Sk. v. District Magistrate
Excerpt:
- - although this argument is ingenious as well as spacious, we find no merit in it the learned government advocate was unable to point out any authority for such a proposition. 7. even before the enactment of the constitution, people enjoyed a measure of personal liberty under the rule of law. and the provisions of the constitution cannot be so construed as to curtail the measure of liberty enjoyed by the people even before the enactment of the constitution. the order of detention as contemplated by the presidential older clearly means an order which is perfectly valid and legal under the act. the said sub-section opens with the words 'for the purposes of clause (51 of article 22 of the constitution'.these words clearly indicate that the provisions of the sub-section are attracted.....s.m.n. raina, j.1. this is a petition under article 226 of the constitution of india for a writ of habeas corpus.2. the petitioner's brother haji abdul gaffar was served with an order of detention, dated 25-9-1974, under section 3 (1) (c) of the maintenance of internal security act as amended by the maintenance of internal security (amendment) ordinance, 1974 (hereinafter referred to as 'misa' and was sent to jail in pursuance of the said order vide annexure 'c'. the grounds of detention were served upon the detenu on 27-9-1974 vide annexure 'd'. the order of the district magistrate was ultimately confirmed by the state government and the detenu was ordered to be detained up to 24-9-1975.3. after the conservation of foreign exchange and prevention of smuggling activities act. 1974.....
Judgment:

S.M.N. Raina, J.

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

2. The petitioner's brother Haji Abdul Gaffar was served with an order of detention, dated 25-9-1974, under Section 3 (1) (c) of the Maintenance of Internal Security Act as amended by the Maintenance of Internal Security (Amendment) Ordinance, 1974 (hereinafter referred to as 'MISA' and was sent to jail in pursuance of the said order vide Annexure 'C'. The grounds of detention were served upon the detenu on 27-9-1974 vide Annexure 'D'. The order of the District Magistrate was ultimately confirmed by the State Government and the detenu was ordered to be detained up to 24-9-1975.

3. After the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 (hereinafter referred to as 'the Act') came into force on 19-12-1974, whereby the Maintenance of Internal Security (Amendment) Ordinance, 1974 was repealed, the original order of detention, dated 25-9-1974, was cancelled the detenu was released; but he was re-arrested under the Act and was served with a fresh order of detention dated 19-12-1974, under Section 3(1) of the Act vide Annexure 'E'. In pursuance of the said order, the detenu was sent back to jail and is under detention since then. The grounds of detention were served on him on 23-12-1974 vide Annexure 'P'. The contention of the petitioner is that the detention of the detenu is illegal.' It is prayed, therefore, that the order of detention be quashed and the detenu be set at liberty.

4. On behalf of the State a preliminary objection was raised that in view of the Presidential Order, D/- 23-12-1974, under Article 359(1) of the Constitution, the proceedings in this Court should be suspended for a period of six months. Shri M. A. Khan, learned Counsel for the petitioner, replying to the objection, urged that the Presidential Order was no bar to the consideration of the petition. It is, therefore, necessary, at the outset, to deal with the preliminary objection.

5. Although in the petition the legislative competence of the Parliament to enact the Act was challenged and the validity of the Act was assailed on that ground, the point was not pressed before us Learned Counsel for the petitioner also did not question before us the validity of the Presidential Order. The controversy before us is, therefore, about the scope and effect of the Presidential Order which is reproduced below for facility of reference:

In exercise of the powers conferred by Clause (I) 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 9 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, 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, 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 for any other action (including the making of any declaration under the said Section 9) 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 the period 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.

This order shall extend to the whole of the territory of India.

6. The first point that was urged by Shri M. V. Tamaskar learned Government Advocate, was that since under the Presidential Order the right to move any Court with respect to an order of detention under the Act for the enforcement of the rights conferred by Article 21 of the Constitution has been suspended, the detention order cannot be challenged on any ground whatsoever while the Presidential Order is in force. Article 21 of the Constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. It has been urged that since the right of a person to question the deprivation of his personal liberty on the ground that it is not in accordance with law has been suspended, the detenu has no remedy in a Court of law, even if his detention is not in accordance with law. Although this argument is ingenious as well as spacious, we find no merit in it The learned Government Advocate was unable to point out any authority for such a proposition.

7. Even before the enactment of the Constitution, people enjoyed a measure of personal liberty under the rule of law. Rule of law means that people are governed by law and law alone, and not by caprice. Under the rule of law no one can be deprived of his personal liberty by anyone, including the Government, except under the authority of law; and the provisions of the Constitution cannot be so construed as to curtail the measure of liberty enjoyed by the people even before the enactment of the Constitution.

8. The object of enacting article 21 of the Constitution was apparently to emphasize the laying down of procedure for the deprivation of life or personal liberty. In A. K. Gopalan v. State of Madras AIR 1950 SC 27 : 51 Cri LJ 1383 Das, J. observed in paragraph 228 that the word 'procedure' in Article 21 signifies some step or method or manner of proceeding leading up to the deprivation of life or personal liberty; and this procedure has to be established by law. It would be erroneous to assume that, but for this article in the Constitution, the State authorities would have been free to interfere with the liberties of the people without the authority of any law. Thus, even where the right to move any Court with respect to an order of detention for the enforcement of the rights under Article 21 of the Constitution has been suspended, the order of detention cannot be sustained unless it has been made under some authority of law.

9. Apart from this, it must be borne in mind that the Presidential Order is attracted only where an order of detention has been made under the Act. The order of detention as contemplated by the Presidential Older clearly means an order which is perfectly valid and legal under the Act. It is. therefore, open to the petitioner to assail the order of detention on the ground that it is not a valid and legal order under the Act.

10. In Makhan Singh v. State of Punjab AIR 1964 SC 381 : (1964) 1 Cri LJ 269 their Lordships were required to consider the scope of challenging the legality or propriety of a detention order after a Presidential Order under Article 359(1) of the Constitution had been issued. Their Lordships pointed out in paragraph 9 that the Presidential Order merely bars the remedy of the citizens to move any Court for the enforcement of the specified rights. The rights are not expressly suspended; but the citizen is deprived of his right to move any Court for their enforcement. Their Lordships then proceeded to consider what pleas are open to the citizen to challenge the legality or propriety of his detention under Article 226 of the Constitution after the Presidential Order is issued. It may be mentioned here that the Presidential Order, which their Lordships were required to consider, was similar to the one before us. Dealing with the question, their Lord-ships made the following pertinent observations in paragraph 35a:

If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the Order, his right to move any Court in that behalf is not suspended, because it is outside Article 359(1) and consequently outside the Presidential Order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act, In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside Article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order.

It is clear from the aforesaid observations that it is open to the detenu to contend that his detention order is illegal for the reason that the mandatory provisions of the Act have been contravened. Their Lordships further held that an order of detention can also be challenged on the ground that it is mala fide. Their Lordships further held that it is also open to the detenu to contend that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and is therefore, invalid. The order of detention in this case has, however, not been assailed on this ground.

11. The aforesaid decision of the Supreme Court was followed by their Lordships in Ananda v. Chief Secy. Govt. of Madras AIR 1966 SC 657 : 1966 Cri LJ 586 and Durgadas v. Union of India AIR 1966 SC 1078 : 1966 Cri LJ 812. In Durgadas' case their Lordships observed in paragraph 5 that if the petitioner seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Articles 14, 21 and 22, the Presidential Order cannot come into operation.

12. We, therefore, hold that for the purpose of challenging the validity of an order of detention on the ground that it is not a lawful order under the Act, the pleas open to the petitioner are as follows:

(1) The order of detention is not passed by the authority competent to act under the Act.

(2) The order of detention has been passed mechanically without application of the mind or is mala fide.

(3) The grounds, on which the order of detention is made, ere not relevant or germane to the exercise of the power under Section 3 of the Act.

(4) The operative provision of law under which he is detained suffers from the vice of excessive delegation.

13. Learned Counsel for the petitioner urged that it is open to the petitioner to challenge the order of detention also on the ground that the grounds of detention are vague and that sufficient particulars of the grounds on which the order is passed have not been communicated to the detenu as required by Sub-section (3) of Section 3 of the Act, and as such the detenu has been denied an opportunity to make an effective representation to the authorities concerned. We do not, however, find any merit in this contention. There could have been some room for such a contention if we were dealing with an order under Section 3 of MISA. It could then be urged that the requirement of Section 8 of MISA regarding furnishing of the grounds of detention to the detenu was a requirement under the Act itself independent of the provisions of the Constitution and as such the order of detention could be challenged on the around that the provisions of Section 8 had been violated.

The learned Government Advocate pointed out that even such a contention was repelled by the Bombay High Court in Smt. Sharda v. V. V. Naik, Cri. Appln. No. 58 of 1974. D/- 20-12-1974. It is, however, not necessary to examine the view taken by the Bombay High Court, particularly because the language of Sub-section (3) of Section 3 of the Act is different. The said Sub-section opens with the words 'For the purposes of Clause (51 of Article 22 of the Constitution'. These words clearly indicate that the provisions of the Sub-section are attracted only so long as it is open to the detenu to challenge his detention on the ground that Clause (5) of Article 22 of the Constitution has been violated. The Sub-section would be inapplicable where the right of the detenu to challenge his order of detention on this ground in a court of law has been suspended by a Presidential Order as in the present case. Thus, the provision contained in Sub-section (3) of Section 3 of the Act cannot be treated as a mandate of the Act itself. It is a provision which merely supplements the fundamental right guaranteed by Clause (5) of Article 22 of the Constitution. It does not confer any independent right on the detenu.

14. It is a cardinal principle of construction of statutes that a provision should not be so construed as to make any part of it redundant or meaningless. If the provisions of Sub-section (3) of Section 3 of the Act are to be treated as conferring an independent right on the detenu that he should be furnished with the grounds of detention under the Act, the aforesaid words would be rendered a surplusage or meaningless. Such a construction cannot, therefore, be accepted. It seems that the legislature purposely introduced these words in the Act to avoid any room for a controversy that the provisions thereof were independent of the provisions of Clause (5) of Article 22 of the Constitution. We, therefore, hold that in view of the Presidential Order, it is not open to the detenu to challenge his detention on the ground that he was not furnished with adequate particulars of the grounds of detention and was thus denied an opportunity to make an effective representation. We would, therefore, confine ourselves to the question whether the order of detention is a valid order under the Act.

15. Under Sub-section (1) of Section 3 of the Act, the Central Government or the State Government or any officer of the specified rank specially empowered may, if satisfied with respect to any person, that with a view to preventing him from dealing in smuggled goods or engaging in any other objectionable activity specified therein, it is necessary so to do, make an order directing that such person be detained. Although the satisfaction contemplated by the aforesaid provision is the subjective satisfaction of the authority concerned, such satisfaction must be reached after due application of the mind to the material which has a bearing on the matter. Shri Khan, learned Counsel for the petitioner, urged that it appeared that the order in question was passed by the authority concerned mechanically without a fresh application of the mind, particularly because it was passed on the same material on which the earlier order of detention had been passed. In order to satisfy us on this point, the learned Government Advocate placed before us the relevant files of the Home Department. On going through these files, we are satisfied that the order was not passed mechanically but after due consideration of the material placed before the Government. In the circumstances of this case, it is of no consequence that the material on the basis of which the order in question was passed was the same which formed the basis of the earlier order of detention.

16. It was also urged before us that the order was not bona fide. In support of this contention an attempt was made to show that some of the grounds were non-existent and also that an attempt was made to fabricate evidence against the detenu. The charge of fabrication is a serious one and we shall, therefore, first address ourselves to this question. The allegation regarding fabrication is particularly with reference to Clause (k) in the Schedule appended to the grounds of detention (Annexure 'F'), which is as under:

(k) On 24-9-1974, S. I. M. K. Sharma. Central Kotwali, Indore, seized illegally imported foreign cloths valued at about Rs. 1,000/- from a godown behind your shop situated in Naibagad, Ranipura, Indore. from you. No valid documents in this respect were found with you.

It is urged in the petition that the Panchnama of the seizure was fraudulently got signed by the detenu by, Shri M. K. Sharma. The particulars of the fraud are mentioned in paragraph (2) at page 16 of the petition. This allegation has been emphatically denied by the Government. The original Panchnama was produced before us and an affidavit of Shri M. K. Sharma was also filed. The contention of the petitioner is that Shri Sharma had asked the detenu to sign a paper which he represented to be a Panchnama about not finding anything from the detenu's shop, residence and godown. The detenu wanted to sign just where the writing ended : but Shri Sharma told him to leave a blank space for the signatures of the Panchas, etc. The petitioner accordingly signed the Panchnama leaving some blank space. It is suggested that this blank space was subsequently utilised by Shri M. K. Sharma for writing out the matter pertaining to an alleged seizure of foreign goods. We have carefully scrutinized the Panchnama and we find no intrinsic evidence in it to support the contention. We are also satisfied from the affidavit of Shri Sharma that the Panchnama is a genuine document. We do not. therefore, find any merit in this contention of the petitioner.

17. We have carefully perused the grounds of detention and the return. We have also looked into the files of the Home Department as well as the two affidavits - one of Shri K. C. Khare, Deputy Secretary to Government, Home Department, dated 6-3-1975, and the other of Shri M. M. Khare, Secretary to Government, Home Department. From the material placed before us we are satisfied that the order of detention was bona fide,

18. The order of detention was also assailed on the ground that it was served soon after the revocation of the earlier order. It was submitted that as the detenu was already under detention, there could be no apprehension of his indulging in objectionable activities and, therefore, the order was mala fide. We find no force in this contention as the original order of detention was revoked mainly because the Maintenance of Internal Security (Amendment) Ordinance, 1974 was repealed by the Act and it was necessary to detain the detenu under the Act to prevent him from indulging in objectionable activities. We may here refer to the decision of the Supreme Court in Ramakrishna v. District Magistrate. Jabalpur AIR 1975 SC 90 : 1975 Cri LJ 46. In that case their Lordships, while dealing with a case under MISA, upheld the validity of an order of detention which was made on the same grounds on which an earlier order of detention had been made and revoked. Their Lordships held that on the basis of the antecedent activities in the proximate past an order of detention can be made, even though at the time the order is made the detenu is already in jail. The position would perhaps be different where an order of detention is passed against a person who has been in jail for a considerable length of time; but that is not so here.

19. As regards the non-existence of certain ground; the learned Counsel for the petitioner urged that no material had been placed before this Court to establish the connection of the detenu with the smuggled goods which are alleged to have been seized from the possession of different persons; and he also pointed out in this connection that even though the detenu was prosecuted, he was absolved from the charge of being involved in an offence under the Customs Act vide order of the Collector of Central Excise dated 23-4-1974, (Annexure 'G'). In that order the Collector made the following observations in paragraph 22:

I find from the evidence on record that it is not possible to connect M/s. Yunus Iqbal or its partners with the seized goods in question and through them with the offence with which they are charged. The case proceedings against them are accordingly dropped.

It may be that the detenu was absolved in that case for want of evidence' : but that does not preclude the State Government from taking preventive action under the Act, if it is satisfied on the basis of material placed before it that the detenu was indulging in objectionable activities, viz., dealing in smuggled goods. Preventive action is to be distinguished from punitive action. The .branch of jurisprudence bearing on punitive action demands adequate and convincing proof of the activities which amount to an offence under a particular Act. Preventive action, on the other hand, is taken by the Government in the larger interest of the society on the basis of subjective satisfaction of the competent authority, even though the material on which such satisfaction is based may fall short of the standard of adequate proof in a Court of law. In this connection, the following observations of their Lordships of the Supreme Court in Golam Hussain v. Police Commr., Calcutta AIR 1974 SC 1336 : 1974 Cri LJ 938 are pertinent:

The branch of jurisprudence bearing on prohibitory detention has been Crystallised by now and it is no longer a valid contention that because the accused has been discharged in a criminal case the ground of charge cannot be relied upon by the appropriate authority for passing an order of detention. The former relates to the punitive branch of the criminal law and relates to the past commission, the latter to the preventive branch of social defence and protects the community from future injury. Whether we like it or not, this branch of jurisprudence, as interpreted by this Court, has made it futile for a detenu to urge that because the grounds of detention have been the subject-matter of criminal cases which have ended in discharge therefore the order of detention is mala fide. The basic imperative of proof beyond reasonable doubt does not apply to the 'subjective satisfaction' component of imprisonment for reasons of internal security. To quarrel with such a proposition is to challenge the wisdom of Parliament.

20. While dealing with a similar question under the Maintenance of Internal Security Act, their Lordships made the following pertinent observations in H. Saha v. State of West Bengal AIR 1974 SC 2154 : 1974 Cri LJ 1479, paragraph 19:

The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same, A criminal conviction, on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove (sic) (on proof of ?) his guilt and the standard is proof beyond reasonable doubt, whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in Section 3 of the Act to 'prevent.

In paragraph 32 of the said case their Lordships further observed that an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. Thus, it is clear that the mere fact that sufficient evidence could not be led before the Customs Authorities connecting a detenu with objectionable activities does not operate as a bar to his preventive detention, if, on the material placed before the competent authority, it is satisfied that he was really connected with such activities. We would, however, like to observe that in such a case it is imperative for the competent authority to carefully peruse the judgment or order of the judicial or quasi-judicial authority concerned and to come to an independent conclusion after giving full consideration to it. Unfortunately, the return filed in the instant case by the Government does not show that this was done. We have, however, looked into the relevant files of the Home Department which were placed before us and on a perusal of the said files we are satisfied that the authority concerned passed the order of detention after giving due consideration to the findings of the Collector of Central Excise in the light of the relevant material placed before it. Thus, the order passed by the State Government appears to be bona fide.

21. Lengthy arguments were addressed by the learned Counsel for the petitioner to point out that the authority concerned drew imaginary inferences as no material was placed before this Court to establish the detenu's connection with objectionable activities. For example, it was pointed out that even though it was stated in the grounds of detention that smuggled goods valued at about Rupees 27,128/- were seized from Mohammad Asif, who was an employee of the detenu and was present at the time of the seizure, there was nothing to show that he was an employee of the detenu. In regard to this allegation, all that is said by the petitioner is that the detenu's connection with the shop which stands in the name of Yunus Iqbal was not established before the Customs Authorities vide paragraph 22 of the Collector, Central Excise Order (Annexure 'G'). It is significant that it has not been categorically asserted that the detenu owns no interest in the said shop or that Mohammad Asif was not his employee.

22. It has to be borne in mind in this connection that the detenu is entitled only to be furnished with the grounds of his detention and not the evidence on which such grounds are based. The grounds are merely conclusions of fact and not a recital of all the facts on which they are based. The following observations of their Lordships of the Supreme Court in Har Jas Dev Singh v. State of Punjab (1973) 2 SCC 575 : 1973 Cri LJ 1602, which is a case under MISA, at p. 583 (of SCC) : (at p. 1607 of Cri LJ) are pertinent:

What must be supplied are the 'grounds on which the order has been made' and 'nothing less'. The detenu is, however, not entitled to know the evidence, nor the source of the information, but he must be furnished with sufficient particulars or facts, i.e., sufficient details to enable him to make out a case, if he can, for the consideration of the detaining authority.

It was rot, therefore, necessary for the State Government to furnish the detenu with the evidence on which the conclusion that Mohammad Asif was his employee was based.

23. We do not consider it necessary for the purposes of this petition to deal with all the arguments advanced by the learned Counsel for the petitioner in regard to each ground individually, because, in the first place, it is not open to the petitioner to challenge his order of detention on the ground that Clause (5) of Article 22 of the Constitution has been violated. Secondly, the arguments were mainly addressed to show that in each case sufficient material in the nature of evidence was not laid before the Court to show that the conclusions of fact referred to in the grounds were correct. As pointed out above, it is not necessary for the State Government to furnish the detenu with all the evidence against him.

24. Moreover, it is not the function of this Court to investigate into the truthfulness or otherwise of the conclusions of fact referred to in the grounds of detention. In Jainal Sk. v. District Magistrate, Dinajpur AIR 1975 SC 229 : 1975 Cri LJ 275 it was observed by their Lordships in paragraph 3, while dealing with a case of detention under section 3 of MISA. that in such a case investigation into the truthfulness of the facts forming the basis of the grounds of detention cannot be embarked. Thus, all that has to be seen is whether the grounds are germane and the subjective satisfaction of the authority concerned is based on material which indicates a bona fide approach to the whole case. Learned Counsel for the petitioner was also at pains to point out that some of the grounds of detention were vague. We do not, however, find any merit in this contention because the grounds must be read with the particulars furnished in the Schedule below the grounds vide Annexure F. The grounds, if read along with the particulars specified in the Schedule, cannot be said to be vague.

25. It would also be pertinent to mention that the previous order of detention, which was passed under MISA on practically the same grounds, was examined by the Advisory Board, after giving due consideration to the representation made by the detenu; but the representation was rejected. The State Government had before it the representation of the detenu before passing a fresh order of detention and it is significant that the matter again went before the Advisory Board but the representation of the detenu was rejected and the order of detention was confirmed by it.

26. For the aforesaid reasons, we find no merit in this petition.

27. The petition, therefore, fails and is hereby dismissed.


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